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Thursday, November 08, 2007

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Keep malpractice claims in check

Legal malpractice claims are increasingly common, and, as virtually all practitioners can attest, reasonable insurance coverage has become more expensive. To help you survive in this climate, TennBarU is offering a 3-hour seminar in Knoxville on Dec. 4, in Nashville on Dec. 5 and in Memphis on Dec. 6, to discuss risk management, recent developments in the area of legal malpractice, recent case law dealing with legal malpractice claims, and the ethical issues implicated by legal malpractice claims.

Take this class for free! With your TBA Complete Membership, three hours of TennBarU programming is prepaid.

https://www.tnbaru.com/CLE/catalog_by_topic.php?topic=17

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

01 - TN Supreme Court
01 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
03 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

DOROTHY OWENS, as Conservator of MARY FRANCIS KING, an incapacitated person v. NATIONAL HEALTH CORPORATION ET AL.

Court: TSC

Attorneys:

John B. Curtis, Jr. and Bruce D. Gill, Chattanooga, Tennessee, for the appellants, National Health Corporation d/b/a NHC Healthcare, Murfreesboro; National Healthcorp, L.P.; National Health Realty, Inc.; NHC, Inc. a/k/a NHC, Inc.-Tennessee; and NHC/OP, L.P.

Richard E. Circeo, Deborah Truby Riordan, and Carey L. Acerra, Nashville, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the appellee, Dorothy Owens, as Conservator of Mary Francis King.

F. Laurens Brock, Jacob C. Parker, and T. Ryan Malone, Chattanooga, Tennessee, and Christopher C. Puri, Nashville, Tennessee, for the amicus curiae, Tennessee Health Care Association.

Judge: HOLDER

In this appeal, the primary issue is whether a durable power of attorney for health care authorized the attorney-in-fact to enter into an arbitration agreement as part of a contract admitting the principal to a nursing home and thereby to waive the principal's right to trial by jury. The case also presents secondary issues relating to the arbitration agreement, including whether this case is governed by the Tennessee Uniform Arbitration Act or the Federal Arbitration Act. We hold that the arbitration agreement is to be interpreted pursuant to the Tennessee Uniform Arbitration Act and that the power of attorney authorized the attorney-in-fact to enter into the arbitration agreement on behalf of the principal. In addition, we reject the plaintiff's arguments that: 1) the arbitration agreement is unenforceable because a material term of the agreement is incapable of performance; 2) the arbitration agreement violates federal law; and 3) pre-dispute arbitration agreements in nursing-home contracts violate public policy. However, we remand the case to the trial court for further proceedings on the question of whether the arbitration agreement is an unconscionable, and thus unenforceable, contract of adhesion.

http://www.tba2.org/tba_files/TSC/2007/owensd_110807.pdf

TAMMY NOONAN v. BRIDGESTONE/FIRESTONE, INC.

Court: TWCA

Attorneys:

Terry L. Hill and Stacey Billingsley Cason, Nashville Tennessee, for the appellant, Bridgestone/Firestone, Inc.

Neal Agee, Jr., Lebanon, Tennessee, for the appellee, Tammy Noonan.

Judge: PEEPLES

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant contends that the trial court erred in finding that plaintiff sustained a work- related injury to her right shoulder, in finding that plaintiff timely notified defendant of her injury, in awarding plaintiff fifty-two weeks temporary total disability benefits, and in determining that she suffered a 16% vocational impairment as a result of her injury. We disagree and therefore affirm the trial court's decision.

http://www.tba2.org/tba_files/TSC_WCP/2007/noonant_110807.pdf

HERSCHEL BREWER, ET AL. v. JAMES BALL

Court: TCA

Attorneys:

Mark A. Ellmore, Jr., Nashville, Tennessee, for the appellant, James Ball.

Randall W. Burton, Nashville, Tennessee, for the appellees, Herschel and Shirley Brewer.

Judge: FARMER

The trial court determined the statute of frauds operated to bar Defendant's counterclaim for damages arising from the breach of an alleged contract for the sale of real property. It further awarded Plaintiffs a return of deposit monies held by Defendant and prejudgment interest. We affirm as modified and remand.

http://www.tba2.org/tba_files/TCA/2007/brewerh_110807.pdf

STATE OF TENNESSEE, EX REL., HARVEY FARRIS, ET AL., v. JAMES D. DELANEY

Court: TCA

Attorneys:

James D. Delaney, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter and Warren Jasper, Assistant Attorney General, for the appellee, State of Tennessee, ex rel., Harvey Farris.

Judge: FARMER

The trial court denied Defendant's motion to dismiss Plaintiff's September 2003 petition to enforce a 1999 settlement agreement for child support arrearages, and ordered enforcement of the agreement. We affirm.

http://www.tba2.org/tba_files/TCA/2007/delaneyj_110807.pdf

STATE FARM FIRE AND CASUALTY COMPANY, as subrogee of, GERALD SCOTT NEWELL, ET AL. v. EASYHEAT, INC., ET AL.

Court: TCA

Attorneys:

Joseph P. Rusnak, Nashville, Tennessee, for the appellant, Tennessee Heritage Enterprises, Inc.

James L. Weatherly, Jr. And Jacqueline B. Dixon, Nashville, Tennessee, for the appellees, State Farm Fire and Casualty Company, as subrogee of, Gerald Scott Newell and Amy Marie Newell.

Judge: FARMER

The trial court denied Defendant Tennessee Heritage Enterprises's motion to compel arbitration under the Federal Arbitration Act notwithstanding the arbitration clause contained in the construction contract executed by Plaintiff homeowner and Defendant. The trial court denied arbitration on the basis of insufficient interstate commerce. Defendant appeals; we reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/easyheat_110807.pdf

JAMES G. THOMAS JR., brother and next of kin of KAREN G. THOMAS, deceased v. ELIZABETH OLDFIELD, M.D., ET AL.

Court: TCA

Attorneys:

Darrell G. Townsend, Nashville, Tennessee, for the appellants, Charles V. Love, M.D. and Emergency Coverage Corporation.

John B. Carlson and William Daniel Leader, Jr., Nashville, Tennessee, for the appellee, James G. Thomas, Jr.

Judge: FARMER

We granted this interlocutory appeal to determine whether the trial court properly ordered the defendants in this medical malpractice action to produce information regarding liability insurance coverage. We hold that the trial court erred because the liability insurance information sought by the plaintiff bears no connection to any claim or defense in the suit; is neither admissible nor reasonably calculated to lead to the discovery of admissible evidence; and is not sought for the preparation of the requesting party's case for trial. We accordingly reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/thomasj_110807.pdf

STATE OF TENNESSEE v. DAVID CLAYBROOK

Court: TCCA

Attorneys:

Rebecca S. Mills, Ripley, Tennessee, for the appellant, David Claybrook.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Elizabeth Rice, District Attorney General; and J. Ross Dyer, Assistant District Attorney General,for the appellee, State of Tennessee.

Judge: SMITH

Appellant, David Claybrook, pled guilty to felony reckless endangerment. Appellant sought judicial diversion from the trial court. At the sentencing hearing, the trial court denied judicial diversion on the basis that Appellant's crime involved the use of a handgun and resulted in injury to the victim. The trial court sentenced Appellant to one year, but suspended all but thirty days of the sentence, ordering the remainder of the sentence to be served on supervised probation. Appellant argues on appeal that the trial court improperly denied judicial diversion. Because the transcript of the guilty plea hearing is not in the record on appeal, we must presume the judgment of the trial court was correct. Therefore, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2007/claybrookd_110807.pdf

TIMOTHY ROBERSON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Richard Vaughn, Milan, Tennessee, for the appellant, Timothy Roberson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; and Garry Brown, District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Timothy Roberson, appeals the denial of his motion to reopen his post-conviction petition that alleged ineffective assistance of counsel. This Court is without jurisdiction to entertain this issue because the Petitioner has failed to comply with the statutory requirements governing review of a denial of a motion to reopen. See Tenn. Code Ann. section 40-30-117. Also, in this appeal, the Petitioner, convicted of first degree murder and especially aggravated robbery in 1995, challenges the denial of his motion for a sample of his own blood. The Petitioner sought to determine his blood type in order to compare it with the blood type found on a towel in the victim's residence. The court determined that the motion for the Petitioner's blood sample should be denied as there was substantial evidence of the Petitioner's guilt presented at trial. Finally, the Petitioner appeals the dismissal of his petition for a writ of error coram nobis that alleged newly discovered evidence in the context of a Brady v. Maryland, 373 U.S. 83 (1963), violation. The coram nobis court1 concluded that any relief was time-barred and that the Petitioner had failed to state a cognizable claim. We affirm the judgment of the Gibson County Circuit Court.

http://www.tba2.org/tba_files/TCCA/2007/robersont_110807.pdf

STATE OF TENNESSEE v. CHRISTOPHER WAYNE WILLIS

Court: TCCA

Attorneys:

Vanessa L. Lemons, Knoxville, Tennessee, for the appellant, Christopher Wayne Willis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Willie R. Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The defendant, Christopher Wayne Willis, was convicted on his guilty pleas of child abuse and vandalism, both Class D felonies. T.C.A. sections 39-15-401 (child abuse); 39-14-408 (vandalism). He received an agreed sentence of four years for each conviction, to be served consecutively. The trial court ordered the manner of service to be four years in the Department of Correction followed by four years of probation. The defendant appeals the imposition of incarceration for the child abuse sentence. Upon review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/willisc_110807.pdf

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Legal News

O'Connor criticizes judicial elections, calls for greater civility between DAs and PDs

Speaking at a conference in Washington, D.C. yesterday, retired Supreme Court Justice Sandra Day O'Connor outlined several deficiencies of the American judicial system, including the partisan election of judges, the lack of collegiality between public defenders and prosecutors and the lack of proper legal representation for the poor. O'Connor said partisan elections jeopardize the independence of judges and called for merit-based selection systems. To improve relations among public defenders and prosecutors and assure pay equity, she said the U.S. should look to Britain's practice of having the same lawyers serve interchangeably in both roles.

Merger talks off for Nashville firm

Discussion of a possible merger between Nashville's Boult, Cummings, Conners and Berry and the Birmingham firm Bradley, Arant, Rose and White have been discontinued, the Nashville Post reports today.