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

PATRICIA CONLEY, AS EXECUTOR AND PERSONAL REPRESENTATIVE OF THE ESTATE OF MARTHA STINSON, DECEASED V. LIFE CARE CENTERS OF AMERICA, INC., ET AL.
With Concurring Opinion


Court: TCA

Attorneys:

Eugene R. Hallworth, Columbia, Tennessee, and Jeffrey J. Downey, Washington, D.C., for the appellant, Patricia Conley, as Executor and Personal Representative of the Estate of Martha Stinson, Deceased.

T. O. Helton and Christy T. Crider, Nashville, Tennessee, for the appellant, Life Care Centers of America, Inc.

M. Bradley Gilmore, Nashville, Tennessee, for the appellee, Genesis of Jackson, Inc., d/b/a Geri-Srvs.

J. Mark Benfield and R. Sadler Bailey, Memphis, Tennessee, Cameron C. Jehl, Little Rock, Arkansas, counsel for the Amicus Curiae, The Tennessee Trial Lawyers Association.

Christopher Connell Puri, Nashville, Tennessee, counsel for the Amicus Curiae, The Tennessee Health Care Association.

Judge: CLEMENT

The estate of a former nursing home resident brought this wrongful death action, asserting sundry claims against the nursing home arising out of an attack on Mrs. Stinson by another resident. As a result of the attack, Mrs. Stinson was hospitalized and treated for injuries including a broken hip. She died four months later of pneumonia. Initially, the claims against the nursing home sounded principally in medical malpractice, with the plaintiff contending the attack, injuries, and death were the result of a variety and series of acts and omissions of the nursing home, including failing to properly screen and/or subsequently discharge the resident who attacked Mrs. Stinson. The plaintiff additionally asserted claims against Genesis of Jackson, Inc., a provider of psychiatric services, and the State of Tennessee, contending they, along with the nursing home, were responsible for determining whether the resident who assaulted Mrs. Stinson should have been admitted or retained as a resident at the nursing home. The plaintiff's claim against Genesis was dismissed by the trial court, and the claim against the State was denied by the Claims Commission. The plaintiff sought to amend the complaint to add a claim for attorney fees against the nursing home under the Tennessee Adult Protection Act. The trial court dismissed the TAPA claim finding the plaintiff's claims sounded in medical malpractice and therefore, by statute, the exclusive remedy was under the Medical Malpractice Act. The plaintiff's medical malpractice claims against the nursing home went to the jury. Following a six-day jury trial, the plaintiff was awarded $130,000 in compensatory damages against the nursing home. The plaintiff and the nursing home appeal. We affirm in part, vacate in part, and remand the surviving claims for a new trial.

http://www.tba2.org/tba_files/TCA/2007/conleyp_010507.pdf

COTTRELL CONCURRING
http://www.tba2.org/tba_files/TCA/2007/conleyp_con_010507.pdf


WILLIAM JAMES JEKOT v. PENNIE CHRISTINE JEKOT
CORRECTION TO OPINION ORIGINALLY FILED ON JAN. 3, 2007

Court: TCA

Attorneys:

William Kennerly Burger, Murfreesboro, Tennessee, for the Appellant, William James Jekot.

Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellee, Pennie Christine Jekot.

Judge: LEE

In this divorce case, the husband appeals the trial court's division of marital property, the amount of the award of rehabilitative alimony to the wife, and the grant of divorce to the wife based on the husband's adultery. The wife argues that she should have been awarded alimony in futuro rather than rehabilitative alimony. After review, we find no error in the trial court's division of the marital property and the award of divorce to the wife based on the husband's adultery. However, we do find error in the award of alimony. We find that the wife is not capable of being rehabilitated and that the amount of monthly alimony awarded should be altered. We affirm the judgment as to the marital property and the award of divorce based on the husband’s adultery and modify the trial court's judgment to award the wife alimony in futuro in the amount of $9,000 per month.

http://www.tba2.org/tba_files/TCA/2007/jekot_corr_010507.pdf

Dissenting and Concurring Opinion
http://www.tba2.org/tba_files/TCA/2007/jekot_dis_010507.pdf


JANE KAY LOVELL v. KEVIN WAYNE LOVELL

Court: TCA

Attorneys:

Vicky V. Klein of Madison, Tennessee for Appellant, Jane Kay Lovell

James Robin McKinney, Jr., of Nashville, Tennessee for Appellee, Kevin Lovell

Judge: CRAWFORD

This is a dependency and neglect case. Based upon the Mother/Appellant's alleged sexual relationship with her minor nephew by marriage, both the juvenile court and the reviewing circuit court found the Mother/Appellant's own minor child to be dependent and neglected under T.C.A. § 37-1-102(b)(12)(B), (F), and (G). Mother/Appellant appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/lovelljane_010507.pdf


NEVA JANE MARCRUM v. THOMAS T. MARCRUM, SR. NEVA JANE MARCRUM v. THOMAS T. MARCRUM, SR.

Court: TCA

Attorneys:

David D. Peluso, Hohenwald, Tennessee, for the appellant, Neva Jane Marcrum.

Billy W. Townsend, Hohenwald, Tennessee, for the appellee, Thomas T. Marcrum, Sr.

Judge: COTTRELL

The sole issue in this appeal involves the division of property upon the divorce of the two parties. Having reviewed the record, we modify the division as to one specific finding of fact and affirm the judgment as modified.

http://www.tba2.org/tba_files/TCA/2007/marcrumnj_010507.pdf


STATE OF TENNESSEE v. BOBBIE GENE GOTHARD

Court: TCCA

Attorneys:

Bryan H. Hoss, Chattanooga, Tennessee, for the appellant, Bobbie Gene Gothard.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; William H. Cox, District Attorney General; and Bret Alexander, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Bobbie Gene Gothard, pled guilty to driving under the influence in exchange for a sentence of eleven months, twenty-nine days on probation following service of forty-eight hours in the workhouse. As a condition of his plea, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i), the defendant reserved a certified question of law dispositive of the case. The certified question of law is whether there were specific and articulable facts to justify the traffic stop of the defendant by the police on or about October 3, 2002. Upon our review of the record and the parties' briefs, we affirm the judgment of the Hamilton County Criminal Court.

http://www.tba2.org/tba_files/TCCA/2007/gothardbo_010507.pdf


TODAY'S NEWS

Legislative News
Legal News
Passages
Court of the Judiciary Actions

Legislative News
Wilder wins Democrat nomination again
Sen. Joe Haynes' ill-fated run for the Democrats' nomination for speaker of the Senate came to an end Thursday as he lost to Lt. Gov. John Wilder in a secret ballot, the Nashville City Paper reports.
Read the full story
Legal News
Death sentences, executions down
The number of death sentences handed out in the United States dropped in 2006 to the lowest level since capital punishment was reinstated 30 years ago. Executions also fell, dropping to the fewest in a decade.
Read more in the Commercial Appeal
Officials study plans for justice center expansion
Several attorneys and judges from the 13th Judicial District met Wednesday to discuss a proposed expansion of the Cumberland County Justice Center.
Read more in the Crossville Chronicle
Miers to leave White House
Harriet Miers, President Bush's failed Supreme Court nominee and longtime adviser, on Thursday submitted her resignation as White House counsel.
Read more in Tricities.com
Juvenile court fight goes to Chancery Court
Attorneys for newly elected Juvenile Court Judge Curtis Person today came to court hoping to block Shelby County Commissioners from adding a second judge to the juvenile justice system.
WMCTV has the story
Does Bush statement mean warrantless mail opening OK?
A signing statement attached to postal legislation by President Bush last month may have opened the way for the government to open mail without a warrant, American Civil Liberties Union attorneys say. Bush officials deny the statement creates any change.
Read more about it in the Knoxville News Sentinel
Passages
Lawyer, lobbyist Joe Majors dies Thursday
Well known Nashville lobbyist Joe Majors died Thursday at age 70. The Vanderbilt University Law School graduate represented Coffee County in the Tennessee House of Representatives in the 1960s and later served as a lobbyist for a wide assortment of clients, including the Tennessee Hotel and Lodging Association, Tennessee Oil Marketers Association, and the Tennessee Finance Association. Memorial services will be held at 2 p.m. Sunday at Wightman Chapel on the Scarritt-Bennett campus.
Read the full obituary in the Tennessean
Court of the Judiciary Actions
Judge reprimanded in paternity, child support case
The Tennessee court of the Judiciary has reprimanded the Hon. Linda J. Onkotz, Sullivan County Child Support Referee for signing and entering three separate findings and recommendations relating to paternity and child support in March and July 1996 and July 2001. Her son and grandson were parties in the case and her actions violated Canon 3E(1)(d) of the Code of Judicial Conduct.
Read the letter of reprimand

 
 
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