author:
DROWOTA, Judge.
      TODD, J., TODD, Judge, DROWOTA, Judge.

text:
    Robert L. TAYLOR, Plaintiff-Appellant, v. NASHVILLE BANNER PUBLISHING COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    March 31, 1978.
    Rehearing Denied May 16, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      Fyke Farmer, Nashville, for plaintiff-appellant.
    James F. Neal and Jon D. Ross, Neal & Harwell, Nashville, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This is an appeal by plaintiff, a public figure, from a summary judgment dismissing with prejudice his libel suit against defendant newspaper.

Plaintiff Robert L. Taylor is a well-known attorney, a former Chancellor, and a former judge of the western section of this Court. He once unsuccessfully sought the Democratic nomination for governor of Tennessee. In the spring of 1974, he was an active candidate for the Democratic nomination to the Supreme Court of Tennessee. Defendant Nashville Banner Publishing Company (Banner), one of two daily newspapers in Nashville, published two articles containing material allegedly defamatory of plaintiff on May 30 and May 31, 1974. The articles dealt with events surrounding the selection of Democratic candidates for the Supreme Court.

The Tennessee Supreme Court is composed of five judges, “of whom not more than two shall reside in any one of the grand divisions of the State.” Tennessee Constitution Art. 6, § 2. Supreme Court judges are to be “elected by the qualified voters of the State” according to such rules as the legislature prescribes. Tennessee Constitution, Art. 6, § 3. Article 6, § 5 of the State Constitution provides that the judges of the Supreme Court shall appoint the Attorney General of the State. By tradition, the Attorney General is appointed from the one grand division, east, middle, or west, that is represented by only one Supreme Court judge.

At one time, judges of all the appellate courts of this State were chosen by means of a merit selection plan. This plan, set out in T.C.A. §§ 17-701 — 17-716, provides for the governor to fill judicial vacancies by appointing one person from a group of three recommended by the appellate court nominating commission, a body established by the statute. The appointee then appears on the next general election ballot to be accepted or rejected by the voters on a “yes/no” basis. While this system still applies to intermediate appellate courts, the legislature in 1974 excepted the Supreme Court judges from its operation. The result is that Supreme Court judges are selected in popular, contested elections much like holders of political offices in the executive and legislative branches of government.

In the spring of 1974, the State’s political parties were anticipating the election of Supreme Court judges to be held in August of that year. The Tennessee State Democratic Executive Committee, which was to choose its party’s five nominees for the Court, had scheduled a meeting in Nashville for that purpose for June 1, 1974. The Committee had received from a special Judicial Selection Commission the names of eight people recommended as qualified for the Court. Plaintiff Taylor’s name was not one of the eight names submitted. The Executive Committee was not absolutely bound to choose its five nominees from among the eight recommended, however, and plaintiff remained an active candidate.

In the context of this political nominating process, the Banner published the first story of which plaintiff complains on May 30, 1974. The gist of the story was that a great deal of political maneuvering was occurring in Democratic ranks with respect to the Supreme Court nominations. In the part of the story particularly complained of by plaintiff, and alleged to be defamatory of him, it is stated that plaintiff was actively seeking the nomination, “possibly by working a deal with the liberal element of the executive committee whereby . Russell Sugarman, a black, would be made attorney general” if plaintiff were nominated to the Court. The entire article is reprinted in an appendix to this opinion, and is further discussed below.

On May 31, 1974, the day before the Executive Committee meeting, the Banner published the second article of which plaintiff now complains. The article told of bribery charges lodged with the District Attorney General in Nashville by a member of the Democratic Executive Committee. The Committee member, it was reported, “said an attempt was made this week to ‘buy my vote’ for Memphis Attorney, Robert Taylor” by an unidentified man and woman. The article went on to describe in detail the attempted bribe, the Committee member’s refusal, and her filing of a statement with District Attorney General Shri-ver, who was said to be investigating the matter. The entire article is reproduced in the appendix to this opinion.

At the June 1 meeting, the Executive Committee chose its five nominees from the list of eight recommended. Plaintiff was not one of the five chosen. All five Democratic candidates were successful in the August election, and they constitute our present Supreme Court.

On May 27, 1975, plaintiff brought the instant libel suit against the Banner in Davidson County Circuit Court, alleging that the articles of May 30 and 31, 1974, defamed him. Plaintiff claimed in his complaint that the articles injured his reputation and resulted in his failing to get enough Executive Committee votes for nomination. He asked $500,000.00 in compensatory and punitive damages. The complaint was amended, in March of 1976, to allege that the articles were published “maliciously,” that they were “calculated by the defendant to injure plaintiff’s candidacy for nomination,” and that they “did produce actual damages to the plaintiff by causing him to fail to secure enough votes.”

Defendant Nashville Banner took the position that the constitutional privilege first established in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applied, and that there was no evidence of “actual malice” as defined in that case. On October 8, 1975, defendant filed its motion for summary judgment. Two grounds for dismissal were asserted: (1) that the language complained of is unambiguous and not defamatory; and (2) that there is no genuine issue of material fact on the issue of actual malice. In support of its motion, defendant attached certain affidavits and depositions. The depositions were ones taken early in 1975 in the case of Taylor v. Tennessee State Democratic Executive Committee, a suit brought by plaintiff in the Chancery Court for Shelby County. Because it perceived the case as a serious and unusual one, the trial court permitted the parties to engage in very extensive discovery over a long period of time before ruling on the summary judgment motion. Further discovery consisted in large part of new depositions, including fresh testimony from some of those whose depositions in the Chancery case had already been submitted.

On January 5, 1977, the trial court filed a lengthy memorandum opinion in which it sustained defendant’s motion for summary judgment on all grounds as to both articles. The opinion contains an orderly and thorough presentation of the facts, and an accurate and extensive discussion of applicable law. It also embodies the court’s conclusion that the articles in question are not defamatory of plaintiff, and that there is absolutely no evidence to indicate that plaintiff could prove that defendant published them with “actual malice” within the meaning of New York Times Co. v. Sullivan, supra. In accordance with this opinion, the court on January 7, 1977, entered an order granting defendant’s motion for summary judgment and dismissing the case. Plaintiff has appealed.

Plaintiff has raised five assignments of error in this Court. In the first, plaintiff complains of the trial court’s conclusion that the articles are not defamatory of him. In the second assignment he disputes the conclusion that there is no genuine issue of material fact on the question of actual malice. In the third assignment plaintiff alleges that the trial court erred in refusing to allow him to amend his complaint, while in the fourth he complains that the trial court improperly weighed the evidence and determined the credibility of the witnesses. In the fifth assignment of error plaintiff simply avers that the trial court erred in granting summary judgment. We will examine the May 30 article in the light of the first two assignments of error, and then proceed to treat the May 31 article in the light of the same two assignments. Finally, we will examine plaintiff’s third, fourth and fifth assignments of error.

Summary judgment is to be rendered by a trial court only when it is shown that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” T.R.C.P. 56.03. The summary judgment procedure is not to be regarded as a substitute for trial of disputed factual issues. Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn. 1975); Layhew v. Dixon, 527 S.W.2d 739 (Tenn.1975). The party who moves for summary judgment has the burden of showing that no genuine issue of material fact exists, and in ruling on the motion the court must view the record in the light most favorable to the motion's opponent. Lucas Brothers v. Cudahy Co., 533 S.W.2d 313 (Tenn.App.1975). With this standard in mind, we turn to the merits of plaintiff’s appeal.

THE ARTICLE OF MAY 30 1974

In his first assignment, plaintiff contends that the trial court erred in concluding that the article of May 30,1974, is not defamatory of him. Plaintiff points especially to the sixth paragraph of the article. The first six paragraphs read as follows:

Intense political maneuvering that has been termed by one insider as “a hell of a lot of dealing” may determine the nominations for the State Supreme Court.
Jockeying, dealing and political pressure are all part of the picture as candidates are attempting to be selected by the State Democratic Executive Committee for the five slots on the ticket for the high court.
The 36 member committee meets here Saturday to narrow a list of eight candidates recommended by the Judicial Selection Commission to five nominees.
But there are some other persons with hats in the ring. And through these persons, deals are being discussed. A “package deal” coming out of West Tennessee focuses on the state attorney general position as being the pawn that could push one candidate onto the ticket.
Indications from Memphis are that former chancellor Robert L. Taylor is attempting to get enough votes to overthrow the recommendation of Justice William H. D. Fones.
Taylor is actively seeking the nomination possibly by working a deal with the liberal element of the executive committee whereby Judicial Selection Commission member Russell Sugarman, a black, would be made attorney general if a “slate” is selected including Taylor.

Plaintiff’s primary argument is that the article charges him with a crime, which of course would make it clearly defamatory. Plaintiff alleges that the article charges him with the crime of bribery, citing T.C.A. § 2-1927. It is doubtful, but arguable, that the conduct attributed to plaintiff by the article is proscribed by that statute.

Furthermore, although plaintiff has not raised the point, this Court recognizes that the May 30 article may easily be understood as charging that plaintiff was guilty of conduct contrary to accepted and published standards of conduct for candidates for judicial office. During May, 1974, the conduct of judges and candidates for judicial office was governed by Rule 38 of the Supreme Court of Tennessee, which then read in part as follows:

The ethical standards relating to the administration of the law in this Court, shall be the Canons of Judicial Ethics of the American Bar Association now in force, and as hereafter modified or supplemented.

Candidacy for judicial office was specifically governed by Canon 30 of the Canons of Judicial Ethics of the American Bar Association, which read in pertinent part:

A candidate for judicial position should not make or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power and he should do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination.

It may be that the May 30 article in effect charges that plaintiff violated this ethical provision by promising to support and vote for Mr. Sugarman as Attorney General if plaintiff were nominated and elected to the Supreme Court. If so, this is a powerful argument in favor of the conclusion that the article is defamatory.

On the other hand, it could be argued that the article must be considered in the context of the politics surrounding major party nominations for high state office, a context clearly delineated in the article as a whole. It is not customary to consider judges and candidates for judicial office in the context of such partisan politics. The judicial function is to interpret and apply the law and to administer justice in a manner that is independent of all considerations save fairness and logic. It is primarily for this reason that the conduct of judges is restricted by many rules, such as the Canons of Judicial Ethics referred to above, which do not bind those in the legislative and executive branches, the function of whose members is to formulate into law and carry out the subjective wishes of the people who elect them. Nevertheless, partisan politics is the context in which candidates for the Supreme Court in 1974 were placed by the use of a “popular election” as the selection process for Supreme Court judges. In such a political context, the disgrace involved in the type of “dealing” attributed to plaintiff in the May 30 article is arguably less than would otherwise be the case with a candidate for judicial office under the “merit” form of selection. This is particularly true when, as here, the alleged deal involved the selection of Attorney General, which is in the nature of an administrative rather than a judicial function of the Supreme Court.

Of the three members of this panel, Judge Todd feels strongly that the May 30 article is defamatory, primarily on the ground that the article in effect charges plaintiff with violating Canon 30, supra. Contrary to the statements in his separate concurring opinion, however, the other two members of this panel neither condone violations of the Code of Judicial Conduct nor would we be unwilling to condemn such violations in a proper case. In this case we simply feel that since the trial court’s judgment in defendant’s favor must be affirmed with regard to the May 30 article on the issue of actual malice, discussed next, it would serve no useful purpose to reach a conclusion on the issue of whether that article is defamatory. Accordingly, we pre-termit any further discussion of the facts or law related to this issue.

Plaintiff’s next argument is that the trial court erred in concluding that there exists no genuine issue of material fact on the question of whether defendant published the May 30 article with actual malice. We disagree. We hold that, due to the absence of competent evidence that the May 30 article was published with actual malice, defendant’s publication of it is protected by constitutional privilege.

Constitutional privilege was first articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), wherein the Court held that a plaintiff who was a public official could not recover for defamatory statements relating to his official conduct unless he could prove that they were published with “actual malice,” defined as knowledge of the statements’ falsity or reckless disregard for whether they are false or not. 376 U.S. at 279-80, 84 S.Ct. 710. This rule, based on the First Amendment guarantees of free expression, was soon extended to apply to public figures who are not public employees in cases such as Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Court has defined “reckless disregard” as a “high degree of awareness of probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). In this regard, the Court has also stated that

[tjhere must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

In the instant case, plaintiff does not deny that he is a public figure for purposes of the New York Times doctrine. Rather, he argues that the inconsistent depositions of Will Cheek, when viewed in the light most favorable to him, raise an issue of material fact as to actual malice.

It was the testimony of both Ken Morrell, defendant’s editor, and Ed Long, its reporter, that Will Cheek, the Secretary of the State Democratic Executive Committee, was the only source for the May 30 article’s connection of plaintiff with a “deal” involving the office of Attorney General. The record contains two depositions of Cheek’s, one taken on January 14, 1975, and the other on April 1, 1976. In the first deposition, Cheek categorically denied that he passed on to anyone a rumor that plaintiff was involved in such maneuvering as the article reported, stating that he did not believe that plaintiff was so involved. In the second deposition, taken more than a year later but after discussions with several people had allegedly refreshed Cheek’s recollection, Cheek testified that he had “speculated” about plaintiff to Ken Morrell, defendant’s editor, along the lines reported in the article.

Plaintiff would have us allow for the possibility that a jury might believe only the statements in Cheek’s first deposition to the effect that he never told defendant that plaintiff was involved in a “deal.” Believing that, plaintiff argues, a jury could then disregard the additional testimony of Mor-rell and Long and conclude that defendant had no source at all for the May 30 article. On this conclusion, says plaintiff, a finding of actual malice might be predicated. This position, however, overlooks legal authority of long standing in Tennessee.

It is a rule of law in this state that contradictory statements of a witness in connection with the same fact have the result of “cancelling each other out.” De-Grafenreid v. Nash. Ry. & Lt. Co., 162 Tenn. 558, 39 S.W.2d 274 (1931); Johnson v. Cincinnati N. O. & T. P. Ry. Co., 146 Tenn. 135, 240 S.W. 429 (1922); Donaho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447 (1941); Southern Motors, Inc. v. Morton, 25 Tenn. App. 204, 154 S.W.2d 801 (1941); Nashville & American Trust Co. v. Aetna Cas. & Sur. Co., 21 Tenn.App. 366, 110 S.W.2d 1041 (1937).

The question here is not one of the credibility of a witness or of the weight of evidence; but it is whether there is any evidence at all to prove the fact. If two witnesses contradict each other, there is proof on both sides, and it is for the jury to say where the truth lies; but if the proof of a fact lies wholly with one witness, and he both affirms and denies it, and there is no explanation, it cannot stand otherwise than unproven. For his testimony to prove it is no stronger than his testimony to disprove it, and it would be mere caprice in a jury upon such evidence to decide it either way.

Johnson, supra, 146 Tenn. at 158, 240 S.W. at 436. As can be seen from the quoted paragraph, this rule of “cancellation” is usually stated as applying only when the inconsistency in the witness’s testimony is unexplained and when neither version of his testimony is corroborated by other evidence. In the instant case, the inconsistency in Cheek’s testimony is explained by his refreshed recollection. The testimony in his second deposition is corroborated by that of Morrell and Long, while the testimony of his first deposition is uncorroborated. Thus, there exist both explanation and corroboration, but both point in favor of the veracity of Cheek’s second deposition, the existence of a reasonable source for the article, and the absence of an issue of material fact with regard to actual malice.

Under these circumstances, a jury could not be permitted to credit the first deposition of Cheek to the exclusion of all the evidence conflicting with it. To apply the rule of Johnson, supra, and disregard the inconsistent testimony of Cheek in toto is to view the evidence in a light as favorable to plaintiff as the summary judgment standard requires, and perhaps more so. Disregarding Cheek’s inconsistent testimony, we are left with the testimony of Mor-rell and Long that Cheek related to defendant the substance of the story it published about plaintiff and the Attorney General “deal.” With the only evidence indicating that the source of the story was the Secretary of the State Democratic Executive Committee, there is no doubt that there exists no genuine issue of material fact as to whether defendant published the May 30 article with knowledge of its falsity or with such reckless disregard for its truth or falsity as to constitute actual malice.

Since a proper view of the evidence reveals no support for the proposition that defendant published the May 30 article with actual malice, it follows that the trial court was correct in granting summary judgment in defendant’s favor with regard to the libel claim based on that article.

THE ARTICLE OF MAY 31, 1974

Rather than reporting possible political “deals” connected with the Democratic nominations for the Supreme Court, the May 31 article discusses the much more serious matter of bribery. The thrust of the article, reproduced in its entirety in the appendix to this opinion, appears in its initial paragraph:

A member of the State Democratic Executive Committee today said an attempt was made this week to “buy my vote” for Memphis Attorney Robert Taylor in Saturday’s committee election for State Supreme Court nominees.

The article goes on to report that the Committee member was approached by two people who offered her “financing” if she would vote for plaintiff, and that she had informed the District Attorney General, who was investigating.

Again, plaintiff’s first argument is that the trial court was wrong to conclude that this article is not defamatory. We cannot agree with plaintiff. It is true that the article clearly and unambiguously reports charges of bribery. But, just as clearly, those charges are not levelled at plaintiff. The article says that two people tried to buy a vote for plaintiff, not that plaintiff tried to buy a vote. In the context of the article, which nowhere even intimates a connection between plaintiff and the two unnamed persons who attempted the bribe, the quoted paragraph can only mean that a vote in favor of plaintiff was attempted to be bought, not that plaintiff was behind the attempt. This certainly cannot be construed as a defamation of plaintiff.

Moreover, defendant is clearly protected by constitutional privilege here. Again, plaintiff does not deny that he is a public figure for purposes of the New York Times doctrine. The trial court found that there was no issue of material fact on the question of actual malice, and we agree.

There is no question that a member of the Executive Committee went to District Attorney General Shriver with allegations of attempted bribery against two people, as the May 31 article reported. The record shows that defendant obtained information about these charges from Shriver himself. The existence of the allegations and the investigation is clearly documented. It is equally clear that the gist of the allegations made to Shriver was that someone had attempted to pay a member of the Committee to vote in favor of plaintiff’s nomination. Indeed, the evidence unequivocally supports not only the proposition that the published report of the allegations was true, but also the proposition that the allegations themselves were entirely true. Thus, defendant might well be entitled to an absolute defense at common law because of the truth of the matter published. At the very least, the substantial veracity of the May 31 article combined with the highly credible nature of its main source, the District Attorney General, supports the trial court’s conclusion that, as a matter of law, plaintiff could not prove “actual malice” in the sense of New York Times and its progeny.

We hold that defendant’s publication of the May 31 article was constitutionally protected as a matter of law because of the absence of any issue of material fact with respect to actual malice. The trial court’s grant of summary judgment was correct, and must be affirmed on this basis. Our conclusion renders it unnecessary for us to consider plaintiff’s rather lengthy arguments on other matters, such as the applicability of the non-constitutional privilege to publish comments on official proceedings.

ASSIGNMENT OF ERROR III

Plaintiff contends that the trial court erred in refusing to allow him to amend his complaint. The record shows that plaintiff did amend his complaint once by leave of court in March 1976, as we have noted above. The subject of this assignment of error, however, is a motion which plaintiff filed November 5, 1976, and which simply says, “The plaintiff Robert L. Taylor moves for leave to amend his complaint in this case.” The substance of the proposed amendment is not attached, nor does it appear in the record at all until the very end, where it is attached to plaintiff's petition to rehear. Nowhere in the record is there a ruling of the trial court on the motion. The transcript of a hearing held on another motion on November 12, 1976, contains reference to a motion to amend by plaintiff, but again the substance is lacking and no ruling appears.

In these circumstances, it would be impossible for this Court to reverse the trial court for failing to allow the amendment, even if it were clear that the court did fail to do so. Unless the record before us shows the substance of a proposed amendment and that it was filed in the trial court, we cannot determine what was before that court or whether the court acted properly on the motion to amend. The proper way to request the court for leave to amend under Rule 15 is to attach a copy of the proposed amendment to the motion so that it becomes part of the record at that time, regardless of what action the trial court takes or fails to take on it. This procedure ensures that the appellate courts know exactly what amendment the trial court was asked to allow. It is only with such knowledge that the trial court’s decision can be reviewed.

Even assuming that the amendment appearing in plaintiff’s motion to rehear was before the trial court as plaintiff contends, however, plaintiff has not been prejudiced in regard to it. First, while the trial court never expressly ruled on the motion to amend, the memorandum opinion indicates that the amendment was not denied but was considered by the court. The memorandum states that “[ejvery indulgence has been allowed the plaintiff, including amendments to the complaint . .” (emphasis added). Since only one amendment, which was allowed, appears in the record, the inference is that the trial court considered that plaintiff’s second motion to amend had been granted.

In addition, plaintiff would not have been unfairly prejudiced even had his second motion to amend been denied. The material factual allegations of the second amendment, as it appears in the petition to rehear, were already at issue. In the final paragraph of the proposed amendment, it is stated that defendant intentionally made false statements knowing they would injure plaintiff’s chances of being nominated, and that the statements did result in his failure to be nominated. This can be construed, at most, as an attempt to plead a cause of action in the nature of intentional interference with prospective advantage. This is the same construction that was placed on plaintiff’s first amendment by defendant’s amended motion for summary judgment, and the trial court expressly rejected such a cause of action in its memorandum opinion. Since the substance of plaintiff’s proposed second amendment to his complaint was pleaded and considered, his case could not have suffered from denial of his second motion to amend had the trial court denied it.

At this point, we note our agreement with the trial court’s grant of summary judgment in defendant’s favor on the cause of action for intentional interference with prospective advantage. Plaintiff has presented no evidence to raise an issue of material fact on any of the elements of that tort in the instant case. See Prosser, supra, § 130. He has cited no authority in support of this cause of action, nor even any to show that such a tort is recognized in Tennessee. Further, insofar as we have held that the First Amendment protects defendant against a charge of libel in this case, it would also protect defendant against liability for this tort. Summary judgment was properly granted on this cause of action.

ASSIGNMENT OF ERROR IV

In this assignment, plaintiff contends that the trial court weighed the evidence and determined the credibility of witnesses, neither of which may properly be done in considering a motion for summary judgment. The only conflict in the evidence that is even arguably material, and the only evidence that could have been weighed or evaluated on the basis of credibility is the inconsistencies in the two depositions of Will Cheek. These inconsistencies involve what Cheek, one of the sources for the May 30 article, told the Banner in connection with that article. We have already decided, however, that the most favorable view to plaintiff that we could possibly take of Cheek’s inconsistent testimony is to disregard it altogether. This decision, fully explained above in our discussion of the issue of actual malice in the publication of the May 30 article, means that it is irrelevant whether or not the trial court weighed Cheek’s inconsistent evidence on the issue of actual malice in the publication of that article. In no other instance could the trial court have weighed evidence or gauged credibility, for in no other instance was there any material evidentiary inconsistency capable of being so resolved. We hold that the trial court followed proper summary judgment procedure on all issues which have been discussed, and on which its decisions have been affirmed, in this opinion.

ASSIGNMENT OF ERROR V

Finally, plaintiff alleges that the trial court erred in granting defendant’s motion for summary judgment and dismissing the case. For the reasons stated in this opinion we disagree, and affirm the judgment of the trial court.

Affirmed.

TODD, J.,

concurs in a separate opinion.

BLACKBURN, Special Judge, concurs.

APPENDIX A

May 30, 1974 Nashville Banner Article INTENSE DEALING COULD INFLUENCE COURT PICKS

By ED LONG

Intense political maneuvering that has been termed by one insider as “a hell of a lot of dealing” may determine the nominations for the State Supreme Court.

Jockeying, dealing and political pressure are all part of the picture as candidates are attempting to be selected by the State Democratic Executive Committee for the five slots on the ticket for the high court.

The 36 member committee meets here Saturday to narrow a list of eight candidates recommended by the Judicial Selection Commission to five nominees.

But there are some other persons with hats in the ring. And through these persons, deals are being discussed. A “package deal” coming out of West Tennessee focuses on the state attorney general position as being the pawn that could push one candidate onto the ticket.

Indications from Memphis are that former chancellor Robert L. Taylor is attempting to get enough votes to overthrow the recommendation of Justice William H. D. Fones.

Taylor is actively seeking the nomination possibly by working a deal with the liberal element of the executive committee whereby Judicial Selection Commission member Russell Sugarman, a black, would be made attorney general if a “slate” is selected including Taylor.

East Tennessee has for years been the division with only one justice and the attorney general. The Supreme Court selects the attorney general.

The committee is composed of 18 men and 18 women. It is reported that Nashville lawyer Bonnie Cowan is seeking to get the support of the women of the committee.

Three of those recommended by the Selection Commission obviously will not be nominated, but it may be because they have been “cut out” of a deal.

State Sen. Ed Gillock of Memphis, who appeared before the commission as a candidate for the high court and was not recommended, reportedly said there is such a deal being made among committee members.

Gillock said that he is running for the Supreme Court nomination. He is busy contacting committee members to attempt to get their votes. “The situation is very, very fluid at this time and that’s all I can say,” the senator said.

One member, Ronald Borod, was targeted as the force behind Fones.

A Memphis lawyer and member of the committee, he said today, “I’m not interested in any deals or trading. I’m a supporter of Justice Fones and I’m interested in the other four seats.

“I’m not part of any move and I don’t know about such a move.”

Borod is a former law partner of Fones. He said that the justice is “trying to meet personally with the committee members.”

Choose Slate

Sen. William Peeler, Waverly, said, “I think there’s going to be an effort made to choose a date (sic) of candidates the panel selected.

“There will also be some candidates that will run who were not recommended by the commission. I would expect Bob Taylor would run regardless of what the commission did.”

About the possibility of a deal between the candidates to also place a sixth person into consideration who would be named attorney general if a “package” was selected, Peeler said, “There’s been some discussion along those lines. I don’t know how serious the discussions have been.”

The veteran lawmaker indicated that the candidates may be more interested in securing their own nominations than in selecting the attorney general.

Will Cheek of Nashville, secretary of the committee, said “I haven’t seen a block vote or ‘slate’ happen yet and I don’t think it will because of the interpersonal relationship among committee members.” He did say that all of the candidates had called him and sent letters to him as well as other members.

“Judges are aware that this type of dealing is illegal, not to mention unjudicial,” Cheek said.

Method of Balloting

Gilbert S. Merritt, Jr., the legal counsel for the Judicial Selection Commission, and Cheek both said that the problem the committee will face Saturday will be in the method of balloting.

The committee will choose a nominee from each of the state’s three grand divisions and two at-large candidates.

Merritt indicated that the order in which the candidates are chosen could be extremely important.

Two of the nominees said earlier this week that the important question will be the number of nominees from East Tennessee, which has traditionally only been represented by one justice. With three candidates, it may be that that section of the state will receive two justices in this election.

With only two candidates from West Tennessee, some observers have said that either Fones or Chief Justice Dyer will be dropped from the ticket if a “deal” is consummated.

The chairman of the Judicial Selection Commission, former Vanderbilt Law School Dean John Wade, said today, “I gather there has been some discussion” about the voting Saturday.

“It is not impossible for the candidates to get together but the members of the State Executive Committee would react adversely,” Wade said.

In addition to Fones, Dyer and Cowan, those being considered are Nashville lawyer William Harbison, Chattanooga Chancellor Ray Brock, Pulaski lawyer Joe Henry, and Courts of Appeals Judges Charles O’Brien of Crossville and Robert Cooper of Knoxville.

May 31, 1974 Nashville Banner Article

Democratic Committeewoman Tells of Attempt to Influence High Court Vote SHRIVER PROBING BRIBE TRY

By LARRY BRINTON

A member of the State Democratic Executive Committee today said an attempt was made this week to “buy my vote” for Memphis Attorney Robert Taylor in Saturday’s committee election for State Supreme Court nominees.

The charge was leveled by Mrs. Helen A. Brown, of 1811 Beech Ave., and a detailed probe has been launched into the allegation by the staff of Dist. Atty. Gen. Thomas Shriver.

The State Democratic Executive Committee member said the alleged bribe attempt was made Tuesday at her home by a man and woman, whose names she could not recall, but could identify.

“How much financing would it take to get your vote,” Mrs. Brown said the man asked after she told him she had not made up her mind as to whom she would vote for Saturday and he allegedly had suggested she vote for Taylor as one of five Democratic nominees.

“My vote is not for sale,” the woman said she replied. Mrs. Brown said the answer “irritated” the woman, about 55 years old, who had originally telephoned her on May 23.

Election to Continue

James Sasser, chairman of the State Democratic Executive Committee, said the election will continue Saturday as planned.

“We plan to continue our meeting as planned and to nominate our Supreme Court justices,” Sasser explained “I think this sort of attempt to influence voters is reprehensible, and shocking and I think Mrs. Brown is to be congratulated for coming forward.”

The committee chairman said the nominees must be certified before the June 6 Democratic Primary election and the election must be held Saturday as planned.

Meantime, Shriver said his investigators began the probe this morning.

“We can’t anticipate how long the investigation is going to take, but I doubt seriously it will be completed by Saturday,” he commented.

The district attorney said he believed his investigators had learned the identity of the woman and expect to learn from her the man’s identity.

Taylor could not be reached for comment. His Memphis law firm reported he was in Nashville for the weekend.

First Contact May 23

Mrs. Brown, serving her first term on the executive committee, said the woman had first contacted her by telephone May 23 stating she wanted to discuss the Davidson County Democratic Executive Committee with her.

“She said she wanted to talk to me about the election of a chairman for the county election committee and she said she also wanted to feel me out on some of the candidates that are coming up for the court nomination,” Mrs. Brown told the Banner.

After discussing politics for a few minutes on the telephone, Mrs. Brown said it was agreed that the woman, who identified herself to the committeewoman, would visit Mrs. Brown said, referring to the continue the conversation.

“She came Tuesday, but she didn’t say she was going to have anyone with her,” Mrs. Brown said, referring to the man who told her he worked at the Metro Courthouse.

“She introduced herself, but I’m not very good on names,” she commented. “He introduced himself, also.”

“We talked about the county executive committee and she said she didn’t like the way things were being run, that people were telling you how to vote and who to vote for,” Mrs. Brown recalled.

“I said that politics is kind of dirty and gets nasty sometimes,” she added. It was then, Mrs. Brown said, that the unidentified man began naming some of the nominees for the justice posts on the State Supreme Court.

“They asked me who I was in favor of,” she said. “I said nobody in particular right now and that my mind was not really made up since I had until Saturday morning to reach a conclusion.

“This man spoke up and said ‘how do you feel about Taylor? I feel like he’s the man for the job.’ ”

Taylor Discussed

Mrs. Brown said she told the couple that she didn’t favor Taylor over any of the other candidates.

“He said Taylor had done so much for the blacks in the Civil Rights movement.” The committee member said they then discussed Taylor’s role as chairman of Alabama Gov. George Wallace’s Tennessee presidential campaign bid.

“That’s when he asked me ‘How much financing would it take to get your vote’, Mrs. Brown stated. After stating she wouldn’t sell her vote, she said the man said, “I don’t want to pressure you, but I wish you would think about it.”

After turning down the alleged bribe attempt, Mrs. Brown said, the man “sort of smiled and tried to approach me at a different angle, but the woman called me ‘hardheaded’ and ‘stubborn’.”

Mrs. Brown said the man telephoned her Thursday, again identified himself, and inquired if she had changed her mind. The woman said she answered that she still had not decided how she would vote Saturday.

Mrs. Brown later contacted her attorney, Gilbert Merritt, who took a statement from her and turned it over to Shriver.

Taylor was one of a flock of democrats who sought recommendation to the State Supreme Court by a special commission named by the Democratic Executive Committee.

The commission recommended eight persons, from which the executive committee can nominate five. Taylor was not one of the eight, but he still hopes to be one of the five nominees.

In its meeting Saturday, the executive committee is under no obligation to choose from the eight people recommended by the special commission.

Committee members privately have confided that the political infighting and dealing for the five posts have been fierce.

TODD, Judge,

concurring.

Although the majority opinion mentions my views on the impropriety of the actions alleged in the May 30, 1974, article, I am disappointed that my colleagues are unwilling to join me in unequivocally condemning actions prohibited by the prescribed ethical standards for the bench and bar.

The Code of Professional Responsibility adopted by the American Bar Association and by the Supreme Court of this State prior to May, 1974, provides:

“D.R. 8-103, Lawyer Candidate for Political Office. A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Canon 7 of the Code of Judicial Conduct.”

The Code of Judicial Conduct promulgated by the American Bar Association states:

“B. Campaign Conduct. (1) A candidate . . . for judicial office . . . ”
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of his office.”

The article of May 30, 1974, charged plaintiff with violating the provisions just quoted.

The import of the article was not merely that plaintiff offered a promise of “support” for a candidate for Attorney General. Due to the fact that the Attorney General was to be elected by the members of the Supreme Court, the promise of “support” by necessary inference included the promise of the vote of plaintiff as a sitting justice of the Supreme Court.

I cannot agree that the violation of the quoted provision of the Code of Judicial Conduct is permissible activity for a judicial candidate “in the context of the politics surrounding major party nominations.” Such conduct is prohibited, wrong, and disgraceful. It is proper grounds for discipline of a lawyer and removal of a judge for misconduct. This Court should not condone it as permissible.

Such conduct being as previously characterized, the imputation of such conduct is of necessity libelous.

I challenge this Court and the Supreme Court to declare in ringing and decisive tones that, regardless of the method of selecting judges, the prescribed standards of professional and judicial conduct are mandatory at all times and that there is no holiday from them during an election season.

Nevertheless, I am willing to accept the conclusion of the majority regarding the article of May 30, 1974, on the ground that the record fails to disclose any grounds of malice, knowledge of falsity, or reckless disregard of truth.

As to the May 31, 1974, article, I concur fully with the majority opinion.

OPINION ON PETITION TO REHEAR

DROWOTA, Judge.

Plaintiff Taylor has filed a brief petition to rehear in which he asks how this Court can ignore the first deposition of Will Cheek and “import absolute verity” to the second. We think it clear from the principal opinion, however, that we did not view Cheek’s depositions in this way. Rather, we assumed that his inconsistent statements had the effect of “cancelling each other out,” which left us with the testimony of Morrell and Long that Cheek was their source for the disputed statement in the article of May 30, 1974. Our approach to this issue has been fully explained in the principal opinion and will not be further recapitulated here.

The petition to rehear is respectfully denied.

TODD, J., and BLACKBURN, Special Judge, concur.


source: Caselaw Access Project

author: TODD, Judge.

license: Public Domain

text:
    Jane R. WISEMAN, Plaintiff-Appellant, v. Ben C. SPAULDING, Jr., Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    June 30, 1978.
    Certiorari Denied by Supreme Court Oct. 30, 1978.

      T. Arthur Jenkins, Manchester, for plaintiff-appellant.
    Don L. Smith, Nashville, for defendant-appellee.
   ABRIDGED OPINION

With the concurrence of participating judges, the original opinion has been abridged for publication.

TODD, Judge.

The plaintiff, Jane R. Wiseman, has appealed from the action of the Trial Judge in sustaining defendant’s motion to dismiss because the complaint fails to state a cause of action upon which relief can be granted.

The first assignment of error asserts error in sustaining defendant’s motion.

The complaint avers that defendant libeled plaintiff by suing out a General Sessions civil warrant against plaintiff for an alleged debt of $1,126.00 and by signing an “application for execution” stating that plaintiff owed defendant $1,145.00; that the imputation of indebtedness was false, malicious and libelous; and that plaintiff suffered injury as a result.

On May 3, 1977, defendant filed a motion to dismiss on four grounds:

1. The complaint shows on its face that plaintiff suffered a judgment to be entered against her which estops her from any action based upon malicious prosecution.
2. The statements and publication thereof as alleged are not defamatory.
3. The alleged defamatory statements are shown to be true by the complaint.
4.The alleged statements are shown by the complaint to be privileged as having been made in the course of judicial proceedings.

On May 26,1977, the Trial Judge entered an order sustaining defendant’s motion and dismissing the cause.

In Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48 (1962), Trice, an unsuccessful defendant, moved for a new trial on grounds that Jones, a spectator, had improper communications with the trial jury to the prejudice of defendant’s case. Jones sued Trice for libel based upon the assertions in the motion for a new trial. The Supreme Court affirmed the action of the Trial Judge in sustaining a demurrer and said:

“[1] The general rule is that statements made in the course of judicial proceedings which are relevant and pertinent to the issues are absolutely privileged, and therefore cannot be used as a basis for a libel action for damages. This rule holds true even though such statements are false, known to be false or even malicious. Hayslip v. Wellford, 195 Tenn. 621, 263 S.W.2d 136, 42 A.L.R.2d 820, and cases cited therein.
[2] Underlying this general doctrine of absolute immunity from liability in libel and slander for statements made in the course of a judicial proceeding is a policy decision by the courts that access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of an individual to a legal remedy where he has been wronged thereby.
[4] We do not believe that any distinction in the general rule has been made or should be made in the cases where the defamatory matter is within an affidavit in support of a motion for a new trial, and it is immaterial whether the affidavit is a separate writing or is incorporated into the motion.
[7] We believe a fair statement of the rule in Tennessee to be that statements made in the course of a judicial proceeding, if pertinent or relevant, are absolutely privileged, and this is true regardless of whether they are malicious, false, known to be false, or against a stranger to the proceeding.”

Other Tennessee authorities to the same effect are annotated in 13A Tenn. Digest, Libel & Slander, &wkey;38, pp. 390 et seq.

Because the statements alleged were made in the course of a judicial proceeding and were pertinent to said proceeding, they were absolutely privileged, and this shows conclusively on the face of the complaint. The complaint therefore does not state a cause of action for which relief can be granted, and plaintiff’s suit was properly dismissed.

The second assignment of error complains that the Trial Judge declined to void all of his previous actions and to recuse himself as requested in motions filed by plaintiff subsequent to the order of dismissal.

One of said motions, unsworn and unsupported by affidavit filed on June 24, 1977, alleges the following:

1. Counsel for plaintiff and defendant agreed to postpone the hearing on defendant’s motion to dismiss from May 13, 1977, to June 24, 1977, and as a result, counsel did not appear to argue said motion on May 13.
2. That counsel discussed but did not agree upon an amendment of the complaint to allege that she was not served with process when sued by defendant; that, due to a misunderstanding as to trial date, plaintiff did not appear for trial of said case; that defendant herein had admitted to plaintiff that she owed him nothing and agreed to remove her name from the general sessions judgment.
3. The ruling of the Trial Judge on May 26, 1977, came as a surprise to both counsel.

Said motion requests that the order of May 26, 1977, be set aside.

In most Trial Courts it is the practice to allow counsel the opportunity of oral argument upon motions, but no authority has been cited or found which requires such opportunity.

In Jerkins v. McKinney, Tenn. 1976, 533 S.W.2d 275, 279, one of the complaints was that a motion for new trial had been overruled without opportunity for argument. The Supreme Court affirmed the Chancellor and said:

“[4] Oral argument is especially unnecessary when only questions of law are concerned. Butterman v. Walston & Co., 50 F.R.D. 189 (E.D.Wis.1970)
The Tennessee Rules of Civil Procedure contain no requirement that trial judges permit argument on motions for a new trial, nor do the rules of practice of the chancery court, as incorporated in T.C.A. § 21-1401.
We do not for one instant minimize the importance of argument. We note with passing interest Chancellor Gibson’s famous footnote 31 to § 546, Gibson’s Suits in Chancery (5th ed.)
‘In arguing a cause, lawyers should keep in mind that a Justice of the Peace needs less argument than a jur- or, that a Circuit Judge needs less than a Justice of the Peace, that a Chancellor needs less than a Circuit Judge, and that an Appellate Judge needs less than a Chancellor. Nevertheless, they are all benefited by sound argument, and especially by the production of pertinent law.’ ”

The preceding precludes any reversal of an otherwise correct ruling for lack of opportunity for oral argument.

Moreover, the order of the Trial Judge states:

“Argument on the original motion to dismiss was not continued by the Court from the regular motion date of May 13, 1977, and the Court was never notified that any such motion to continue argument was to be made. The Court was not contacted in any regard by any person regarding a continuance of argument on said motion.”

On July 29, 1977, plaintiff filed a motion asking that the Trial Judge recuse himself because of personal friendship with the defendant. Said motion was supported by affidavit of plaintiff as to various facts and circumstances from which she concluded as follows:

“I feel Judge Ewell has allowed his social relationships with Dr. Ben C. Spaulding, Jr., to influence his judicial conduct or judgment together with the fact he has found disfavor with my husband, my father, and myself.”

On August 23, 1977, said motion was overruled.

Appellant cites no authority except Canon 3(c)(1) of the Code of Judicial Conduct as follows:

“C. Disqualification
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

It should be emphasized at this point that the issue before this Court is not the propriety of the judicial conduct of the Trial Judge, but whether he committed reversible error, i. e. committed error which resulted in an unjust disposition of the cause.

A judge’s determination of whether he will disqualify himself from sitting in a case is a matter within his discretion. State of Tenn. ex rel. Phillips v. Henderson, Warden, 220 Tenn. 701, 423 S.W.2d 489 (1968).

The affidavit of appellant contains nothing more than circumstances from which it might be inferred that the Trial Judge might have some reason to have a favorable or unfavorable opinion of the parties. The result being correct, the facts alleged are not sufficient to warrant a finding by this Court that the Trial Judge committed reversible error in refusing to recuse himself retroactively, thereby vacating all his previous actions in the case.

The ruling of the Trial Judge was one of law in which this Court concurs. It would not be in order for this Court to set aside a correct ruling of law on grounds of alleged prejudice when to do so would be an exercise in futility. It would be an idle gesture to reverse and remand for a ruling by another judge when his ruling must, perforce, be the same, else this Court would reverse and correct on appeal.

The judgment of the Trial Judge is affirmed. Costs of this appeal are taxed against appellant.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: MATHERNE, Judge.

text:
    Horit PHILLIPS, Plaintiff-Appellant, v. MEMPHIS FURNITURE MANUFACTURING COMPANY, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    July 26, 1978.
    Certiorari Denied by Supreme Court Nov. 6, 1978.

      Carol H. Daniel, Memphis, for plaintiff-appellant.
    Canada, Russell & Turner, Patrick M. Ar-dis and Susan Callison, Memphis, for defendant-appellee.
   MATHERNE, Judge.

The plaintiff, a discharged employee of the defendant, sues to recover vacation pay allegedly due under the contract of employment. The trial judge found for the defendant-employer and dismissed the plaintiff’s lawsuit.

In October 1975 the plaintiff completed ten-years continuous service with the defendant. The trial judge found that the plaintiff was discharged for cause on May 26, 1976. There is no appeal from that ruling, and we, therefore, treat the plaintiff as having been discharged for cause.

The contract of employment is reflected in an Employee’s Handbook which has the following provisions relative to vacations:

Each employee who has been an employee of the Company continuously for one year or more prior to June 1st shall be entitled to one week’s vacation with pay.
In addition to the 5 days or 40 hours pay for employees who have completed one year’s service by June 1st, employees who—
have completed 2 years service will re-
ceive 6 days or 48 hours pay.
have completed 3 years service will re-
ceive 7 days or 56 hours pay.
have completed 4 years service will re-
ceive 8 days or 64 hours pay.
Each employee who has been an employee of the Company continuously for FIVE YEARS or more prior to June 1st shall be entitled to TWO WEEKS vacation pay each year.
In addition to the 10 days or two weeks paid vacation for employees with 5 or more years service by June 1st, employees with 10 years of service will receive a third week of vacation pay. Employees with 20 years or more service will receive a fourth week of vacation pay. The third or fourth weeks of vacation for those qualified may not be taken at the regular vacation period, but will be scheduled at the convenience of the Company between the end of our regular vacation period and the beginning of the next. When the third and fourth weeks of vacation are taken, employees will receive the vacation pay just as if they had worked 40 hours that week. The Company feels it is most important that people with 10 and 20 years of service take their third and fourth weeks of vacation; consequently, it must be taken and pay will not be given in lieu of the vacation. Every effort will be made by our supervisors to schedule each employee’s extra vacation week at a time convenient to him or her, but he will also have to be guided by production needs. All vacations must be taken in the vacation year from June 1st to May 31st and may not be accumulated.
All of our past rules for vacation eligibility will still govern. Only continuous service completed by June 1st will count toward vacations. Vacation pay will be computed by multiplying the employees’ straight time base rate, times the number of hours he is entitled to.
Continuous service shall not be considered to have been broken by short term lay-offs or temporary shutdowns of the Company’s plant because of momentary scheduling problems, changes, etc.
No employee may demand pay in lieu of vacations, nor may he accumulate or carry over his vacation from one calendar year to the next. In an emergency, the company may require an employee to work during his vacation and such employee shall receive his vacation pay in lieu of his vacation, plus his regular pay for whatever time he works during his vacation period but in such cases the company will give the employee as much notice as possible.
Vacation pay shall in all eases be figured at the employee’s straight time base rate.

The plaintiff argues that he had a vested right to three weeks vacation pay as of October 1975, and the June 1 date merely states the time after which he could realize that benefit. The plaintiff was scheduled for a vacation beginning June 26, 1976.

The defendant insists that the contract requires that an employee be actually employed at the time of the vacation. The proof is that the defendant had not in the past paid any amount to a discharged employee as vacation pay.

We hold that the quoted provisions of the contract entitles an employee to a “vacation with pay”, and requires the employee to take the vacation in order to obtain the benefit. We further hold that under the contract a vacation with pay contemplates employment at the time of the vacation. The contract can not be construed to mean that the vacation with pay should be considered as providing a cash bonus in lieu of a vacation with pay.

The case of Textile Workers Union of America v. Brookside Mills (1957), 203 Tenn. 71, 309 S.W.2d 371, is not in point. There the contract provided for “vacation pay” in an amount equal to a certain percentage of the employees annual earnings. This “vacation pay” was to be paid on June 1 of each year with the week of July 4 each year designated as vacation week. In Brookside, the employer ceased all operations due to economic reasons and for those reasons the employment of the three plaintiffs was terminated in January, February and March of 1956. The Court in Brookside held that the employees were entitled to vacation pay based upon their earnings from the date of last payment of vacation pay to the date of discharge. Brookside dealt with a contract for “vacation pay” the present lawsuit deals with a contract for “vacation with pay.” For these reasons, the present case is distinguishable from Brookside.

The judgment of the trial court is affirmed. Cost in this Court is not taxed because the plaintiff’s appeal is on pauper’s oath.

NEARN and EWELL, JJ., concur.


author: DANIEL, Justice.

text:
    Charles Kenneth CAMPBELL, Petitioner, v. NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Respondent.
    No. B-7395.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Dec. 13, 1978.
    Cobb, Thurmond, Bain & Clark, Earle Cobb, Jr., San Antonio, for petitioner.
    Clemens, Spencer, Weimaker & Finck, George H. Spencer and F. Nolan Weimaker, San Antonio, for respondent.
   DANIEL, Justice.

Charles Kenneth Campbell sued Northwestern National Insurance Company for specific performance of an alleged option contract for his purchase of an apartment complex and in the alternative for the reasonable value of his services in remodeling the apartments as requested by Northwestern. The jury found that Northwestern granted Campbell an option to buy the Les Chateaux apartment complex at Northwestern’s cash cost as part of the consideration for Campbell’s services, and that reasonable value of such services was $80,-095.63. The trial court entered a take-nothing judgment non obstante veredicto. The Court of Civil Appeals affirmed. 565 S.W.2d 248. We reverse the judgment of the Court of Civil Appeals and remand the cause to that court for further proceedings consistent with this opinion.

Northwestern foreclosed its mortgage on the Les Chateaux apartment complex in San Antonio in early July 1975 and purchased the complex at a sheriff’s sale for the sum of $1,193,620.00 plus costs. At that time, the complex was in a very distressed physical condition and only about half occupied with tenants. Campbell was known to the local mortgage company servicing the loan for Northwestern as a very successful manager of several apartment complexes in Houston and San Antonio and was recommended as such to the officials of Northwestern. Campbell was not in the business of managing apartments for other persons, but was persuaded to take over the management of this complex. Campbell claims that the option for future ownership was the motivating factor in his decision. It is undisputed that he was paid a fee of $7.50 per unit per month plus five percent of the gross income. In dispute is whether, as additional compensation for his services, Campbell was granted an option to purchase the apartment complex for the amount of cash that Northwestern had invested in the complex. Campbell testified that he would not have taken over this extensive restoration project for a “management fee” alone. Officials of Northwestern testified that no promise was made to Campbell other than that any offer he made to purchase the complex would be considered by the finance committee of Northwestern.

The jury found that, in addition to the specific management fees, Northwestern gave Campbell an option to purchase the apartments at Northwestern’s cash cost. It is settled that a trial court is authorized to set aside a jury finding only when there is no evidence to support the finding. Rule 301, Texas Rules of Civil Procedure. In determining that there is “no evidence” to support a jury finding, the court must consider the evidence in the light most favorable to the finding, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences contrary to the finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex. 1974).

We cannot say from an examination of the record in this light that there is no evidence to support the jury verdict. There was evidence that because of the distressed physical condition of this complex in July 1975, Campbell was required to perform many services in addition to those customarily performed by the manager of an ongoing apartment complex. The Les Chateaux was substantially remodeled and renovated at a cost of over $200,000.00, with Campbell performing many services in the nature of an architect or general supervisor over several subcontractors. There was testimony that the customary management fees which were paid to Campbell allowed him no profit for his services in supervising the remodeling of the complex and that he anticipated his compensation or profit would come through the option to purchase at Northwestern’s cost.

Campbell concedes that the oral agreement granting him the option to purchase the complex is unenforceable because of the Statute of Frauds. Tex.Bus. & Comm.Code Ann. § 26.01(b)(4). The question before us is whether he can recover in quantum meruit for the sum of $80,095.63 found by the jury to be the reasonable value of his unpaid services in remodeling the complex. The lower courts concluded that he could not recover because there was no agreement as to the time and manner of payment of the purchase price under the option and hence no contract at all. Without an agreement of the parties as to the time and manner of exercising such an option, there is no contract for the court to enforce—either by ordering specific performance or by awarding damages for a breach. Botello v. Misener-Collins Company, 469 S.W.2d 793 (Tex.1971); Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962).

Nevertheless, the right to recover in quantum meruit does not grow out of the contract, but is independent of it. This right is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965); Scott v. Walker, 141 Tex. 181, 170 S.W.2d 718 (1943); Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031 (1937); 1 Williston on Contracts § 3A.

The record establishes that Campbell rendered valuable services to Northwestern. After his remodeling and successful management, the apartment complex was changed from a distressed and losing operation to a valuable commercial enterprise. Northwestern did not contend that these services were rendered gratuitously, but rather that Campbell was fully paid as per the agreement. The jury rejected this contention. It found that the sum of $80,-095.63 will fairly and reasonably compensate Campbell for the unpaid services rendered in behalf of Northwestern. We conclude that Campbell is not precluded from recovery on his plea in quantum meruit and that the trial court erred in disregarding the jury verdict with respect thereto.

This conclusion requires a reversal of the judgments of the lower courts. Northwestern asserted a number of cross-points in the Court of Civil Appeals, including alternative points seeking a remand because of alleged factual insufficiency of the evidence to support the jury findings. These points were not considered by the Court of Civil Appeals in view of its affirmance of the trial court’s take-nothing judgment. Northwestern, having obtained a totally favorable judgment in the Court of Civil Appeals, was not required to carry forward to this Court its alternative cross-points calling for a remand. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964); Hatchell and Calvert, Some Problems of Supreme Court Review, 6 St. Mary’s L.J. 303, 305-318 (1974). Inasmuch as factual insufficiency points are within the exclusive jurisdiction of the Court of Civil Appeals, we remand the case to that court for determination of such points. Custom Leasing, Inc. v. Texas Bank & Trust Company of Dallas, 491 S.W.2d 869 (Tex.1973).

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court for further proceedings not inconsistent with this opinion.

      . Campbell made at least two unaccepted written offers to purchase the apartment complex which differed as to the amount of down payment, rate of interest and term of the loan. Actually, Northwestern was interested in selling the complex if a satisfactory offer was made, but it wanted a larger down payment and a greater interest return on the balance than was offered by Campbell.


author: CHADICK, Justice.

text:
    FIRESTONE TIRE AND RUBBER COMPANY, Petitioner, v. Robert D. BULLOCK, Comptroller, Respondent.
    No. B-7427.
    Supreme Court of Texas.
    Oct. 18, 1978.
    Rehearing Denied Nov. 22, 1978.

      Stubbeman, McRae, Sealy, Laughlin & Browder, Joe R. Greenhill, Jr., Austin, for petitioner.
    John L. Hill, Atty. Gen., Myra A. McDaniel, Asst. Atty. Gen., Austin, for respondent.
   CHADICK, Justice.

Petitioner, Firestone Tire and Rubber Company, instituted suit as authorized by Tex.Tax.-Gen.Ann. art. 20.10(H)(1) (1969), against respondent, Robert D. Bullock, in his capacity as Comptroller of Public Accounts of Texas, for recovery of judgment refunding sales and use taxes alleged to have been illegally determined and collected by Bullock.

Along with its primary business of selling automobile tires, Firestone installed shock absorbers in customer automobiles on a lump-sum price basis which included the price of the parts and the price of the labor. As a result of such installations, Firestone’s liability for collection and remittance to the Comptroller of the sales tax imposed by Article 20.02 turns upon whether Firestone qualified as a lump-sum repairman under Article 20.01(T)(1) and regulations promulgated by the Comptroller, Ruling No. 95-0.-098. The parties stipulated all facts produced at the trial. The trial court found that installation of shock absorbers was a necessary and incidental part of repair service Firestone performed for customers; and that in performing such service Firestone incorporated shock absorbers owned by it into customer automobiles under repair. On such stipulated findings Firestone was adjudged a lump-sum repairman and awarded a recovery of $79,616.33 in accordance with the stipulation. The Court of Civil Appeals concluded that as a matter of law, under the stipulated facts, Firestone was not a statutory lump-sum repairman, reversed the trial court judgment and rendered judgment that Firestone take noth-

ing. 561 S.W.2d 596. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court affirmed.

A sales tax is imposed by Article 20.02 upon the retail sale of taxable items. In a normal consumer purchase of goods, the sales tax is added to the purchase price of the item and collected from the purchaser by the retailer. The retailer is then required to remit the sales tax to the state. However, when a repairman performs work for a lump-sum, supplying both parts and labor, the consumer for whom the work is performed is not liable for the sales tax. Rather, under Article 20.01(T) the repairman is deemed the consumer of the goods and is liable for the sales tax upon the items of tangible personal property which are incorporated into his work product. See Tracy, Annual Survey of Texas Law, Taxation, 28 Sw.L.J. 340, 344 (1974).

Firestone paid a retail sales tax on approximately one-half of the shock absorbers in question at the time it bought them at retail from local suppliers. The remainder were bought by Firestone in its capacity as a wholesaler and taxes were paid to the Comptroller on these as they were disposed of through its repair shops. Firestone did not sell shock absorbers over the counter at retail. It disposed of them by a lump-sum price installation in customer vehicles. Firestone’s lump-sum price for a shock absorber installation job included all the cost of material and labor. The Comptroller assessed and collected an additional sales tax on Firestone’s installation jobs by treating an installation job as a retail sale and the total price of the installation job as taxable. Firestone paid the additional tax under protest and brought the instant suit for a refund. At stake in this action is the difference between the amount of taxes Firestone has already paid to retailers and directly to the Comptroller and the amount the Comptroller found to be due by treating a Firestone’s lump-sum installation job as a retail sale of shock absorbers.

Article 20.01(T) provides in pertinent part:

“Contractor or repairman” shall mean any person who performs any repair services upon tangible personal property or who performs any improvement upon real estate, and who, as a necessary and incidental part of performing such services, incorporates tangible personal property belonging to him into the property being so repaired or improved. Contractor or repairman shall be considered to be the consumer of such tangible personal property furnished by him and incorporated into the property of his customer, for all of the purposes of this Chapter.
(1) The above provision shall apply only if the contract between the person performing the services and the person receiving them contains a lump-sum price covering both performance of the services and the furnishing of the necessary incidental material.

Firestone argues that installation of shock absorbers was necessary and incidental to its repair of automobiles as found by the trial court, and the Comptroller argues that installation was merely incidental to the sale of shock absorbers, as found by the intermediate court. Firestone and the Comptroller join issue on whether installation of shock absorbers, as shown by this record, was secondary to automobile repair work performed by Firestone. The courts of this state have not heretofore had occasion to consider the issue. However, there are a number of cases from other jurisdictions which discuss similar types of business activity and shed some light on the problem. Because these out-of-state cases do not construe statutory terminology similar to that in the Texas statutes, their instructive value is limited. Accordingly, the factual situation here is carefully reviewed to determine the effect of Article 20.01(T) as a case of first impression in Texas.

Two mounting screws at the bottom end and one at the top are used to attach a shock absorber to an automobile. Replacement is effected at Firestone shops by mechanically lifting the vehicle above the floor to give adequate work room, detaching the mounting screws, replacing the old shock absorber with a new and securing it by inserting and tightening the mounting screws with an air wrench. The Comptroller insists that when replacement or installation of a part or accessory requires little skill, and without changing its form it may be installed with relative ease by an unskilled person, an agreement to replace or install the item at a lump-sum price is primarily a sale of the item and replacement or installation is incidental and secondary. It appears that experience, special skill and knowledge are negligible factors in the installation of shock absorbers and we agree with the Comptroller’s contention and the Court of Civil Appeals finding that in performing a simple shock absorber installation job Firestone does not come within the statutory definition of a repairman.

However, in this case some Firestone customers brought automobiles to its shops for general repair work and shock absorbers were replaced as a part of such general repair. Customers also brought in vehicles that did not ride smoothly or with tires wearing unevenly and instructed Firestone to correct such malfunctions. It may be inferred from the stipulations that the shop operator in these instances was expected to rely upon experience and exercise skill and judgment in determining needed correction and furnishing necessary repair service. It may also be inferred that replacement of shock absorbers would not be the full extent of repair in many of these transactions. In instances where work other than replacement of shock absorbers was performed, replacement of shock absorbers could well be necessary and incidental to the repair service performed.

From the factual record it may reasonably be determined that replacement and installation of shock absorbers was made by Firestone in the performance of lump-sum priced general repair service on customer automobiles, and that Firestone, as a necessary and incidental part of performing such service, incorporated its own shock absorbers into the vehicles being repaired. The trial court so found and such finding brings Firestone within the definition of a repairman. It follows that the Court of Civil Appeals mistakenly concluded that as a matter of law Firestone was not a statutory repairman under all circumstances shown by the record.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court affirmed.

GREENHILL, C. J., not sitting.

      . The Limited Sales, Excise and Use Tax Act is divided into several articles, Tex.Tax.-Gen.Ann. art. 20.01 through art. 20.17 (1969). Reference will be made to specific articles in the Act when appropriate.

      . The stipulation instrument does not recite or otherwise indicate the agreement was intended to convert this controversy into an agreed case as contemplated by Tex.R.Civ.P. 263.

      . The Comptroller’s definition of a repairman at the time of audit is set out in Tex.Comptroller’s Ruling No. 95-0.09: “Repairman. A repairman is any person who restores tangible personal property to its original condition and who, in performing such repairs, incorporates tangible personal property belonging to him into the property being repaired. . . .” However, it should be noted that an administrative interpretation is valid only insofar as it is consistent with the statutory definition and will not be effective to expand or to contract the language of the statute. Social Security Bd. v. Nierotko, 327 U.S. 358, 368, 66 S.Ct. 637, 90 L.Ed. 718 (1946); Utah Hotel Co. v. Industrial Commission, 107 Utah 24, 151 P.2d 467, 471 (Utah 1944).

      . Hagerty v. General Motors Corp., 59 Ill.2d 52, 319 N.E.2d 5 (1974); Pierce v. Pacini, 127 Ill. App.2d 1, 261 N.E.2d 515 (1970); Commonwealth v. Pennsylvania Heat and Power Co., 333 Pa. 46, 3 A.2d 412 (Pa.1939); Cody v. State, 235 Ala. 47, 177 So. 146 (1937); Doby v. State, 234 Ala. 150, 174 So. 233 (1937).

      . The Alabama court in Cody v. State, supra at Note 4 construed the Alabama Sales Tax Act saying: “. . . when the operator of an automobile repair shop sells an article or part for a car, it is a retail sale, and the tax must be paid by him, though he also installs the part in the car. . . . When the shop operator uses and consumes material in repair work and reconditioning cars of his own or for others, or uses parts in reconditioning his own secondhand cars for sale, he is in that respect a consumer, not a retailer, and the tax is upon the sale to him, since there is no sale by him.”

      . In paragraph 15 of the stipulation instrument the parties agreed with reference to the audit period under consideration that:
      “During said period, some customers come into said Company Stores for the specific purpose of having new shock absorbers installed. Some customers come into said Company Stores with the general knowledge and specific complaint that their automobiles are not riding smoothly, or that their tires are not wearing evenly, but without knowing that new shock absorbers are needed. Others come in for general automobile repair work and new shock absorbers are installed during the course of that general repair work.”

        .Pierce v. Pacini, supra at Note 4, in construing the Illinois Retailers Occupation Tax Act formulated this rule: “When a customer contracts for the restoration of a motor vehicle’s function and relies upon the experience and skill of the serviceman in the performance of this task, the serviceman is engaged in the sale of a service. If in the course of the repair it becomes necessary to replace a part, and the serviceman chooses the part and installs it, its transfer is incidental to the service. . On the other hand, when a customer purchases from a service station an item such as seat covers for his automobile and makes the selection and the sale does not obligate the seller to install them, then, even though the seller does install them, the transaction is a sale at retail,