Commission recommends 3 for COA post

The Judicial Selection Commission today submitted three candidates to Gov. Phil Bredesen for his consideration to fill a Court of Appeals vacancy created by the death of Judge William Cain. There were 20 applicants for the position. Those submitted are: Richard H. Dinkins, Chancellor, Davidson County Chancery Court, Part IV, in Nashville; Christina Henley Duncan, an attorney with Rogers and Duncan in Decherd; and Amy V. Hollars, an attorney in Livingston.
TODAY'S OPINIONS
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01 - TN Supreme Court
00 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
11 - TN Court of Appeals
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00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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KRISTINA WAIT v. TRAVELERS INDEMNITY COMPANY OF ILLINOIS

Court: TSC

Attorneys:

Wade B. Cowan, Nashville, Tennessee, for the appellant, Kristina Wait.

Vanessa R. Comerford, Franklin, Tennessee, for the appellee, Travelers Indemnity Company of Illinois.

Terry L. Hill and Michael L. Haynie, Nashville, Tennessee, for the Amicus Curiae, Tennessee Chamber of Commerce & Industry, the Tennessee Self-Insurers Association, and the Tennessee Defense Lawyers Association.

Judge: BARKER

This workers' compensation action presents an issue of first impression in Tennessee. The plaintiff sought workers' compensation benefits after a third party assaulted her while she was preparing lunch in her home where she had an employer-approved office. The chancery court granted the defendant's motion for summary judgment holding that the plaintiff's injuries did not arise out of or occur in the course of the plaintiff's employment. On appeal, the plaintiff argues that: 1) the injuries arose out of her employment because her work arrangement placed her in a position that facilitated the assault, and 2) the injuries occurred in the course of her employment because she was engaged in a permissible incidental activity. We accepted review before the case was heard or considered by the Special Workers' Compensation Appeals Panel. Upon due consideration, we conclude that the plaintiff did suffer her injuries in the course of her employment. However, we affirm the chancery court's holding that the plaintiff's injuries did not arise out of her employment.

http://www.tba2.org/tba_files/TSC/2007/waitk_111607.pdf


VICKY BERRY v. HOUCHENS MARKET OF TENNESSEE, INC., d/b/a Save-a-Lot Stores, and J.D. EATHERLY PROPERTIES

Court: TCA

Attorneys:

Michael H. Sneed, Nashville, Tennessee, for appellant.

Joseph M. Huffaker and Mary Beth Haltom, Nashville, Tennessee, for appellee.

Judge: FRANKS

Plaintiff fell in a puddle of oil in the parking lot near the Save-a-Lot Market. The Trial Court granted the market and the owner of the parking lot summary judgment. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/berryv_111607.pdf

LEE dissenting
http://www.tba2.org/tba_files/TCA/2007/berryv_DIS_111607.pdf


JANIE CABANY v. MAYFIELD REHABILITATION AND SPECIAL CARE CENTER ET AL.

Court: TCA

Attorneys:

John B. Curtis, Jr. and Bruce D. Gill, Chattanooga, Tennessee, for the appellant, NHC Healthcare, Murfreesboro a/k/a NHC, Inc.

Larry D. Wilks, Springfield, Tennessee, for the appellee, Janie Cabany.

Judge: KOCH

This appeal involves the enforceability of an arbitration clause in a nursing home's admission contract. The resident was admitted to the nursing home following hospitalization for unsatisfactory care at another nursing home. Upon admission, the resident's spouse signed an admission contract containing an arbitration clause. After the resident's death, his spouse filed suit in the Circuit Court for Rutherford County against her husband's healthcare providers, including the nursing home. When the nursing home moved to compel arbitration in accordance with its admission contract, the resident's spouse asserted that the arbitration clause was unenforceable because (1) she did not have actual authority to waive her spouse's right to a jury trial, (2) the arbitration clause was a contract of adhesion, and (3) the arbitration clause violated a federal law prohibiting nursing homes from receiving additional consideration apart from Medicare or Medicaid in the admissions process. The trial court declined to compel arbitration after concluding that the resident's durable power of attorney for healthcare applied only to medical decisions and that the decision to waive the right to a jury trial was a legal, not a medical, decision. The nursing home has appealed. We have determined that the trial court's interpretation of the scope of the resident's power of attorney for healthcare was too narrow and that the trial court also erred by failing to determine first whether the conditions authorizing the spouse to act under the power of attorney for healthcare existed when she executed the admission contract.

http://www.tba2.org/tba_files/TCA/2007/cabanyj_111607.pdf


IN RE: The Adoption of D.A.S., M.W.C. and R.L.C. v. W.P.S.

Court: TCA

Attorneys:

Sonya Slaughter Helm, Bristol, Tennessee, for appellant.

L. Carter Massengill, Bristol, Tennessee, for appellees.

Judge: FRANKS

Petitioners sought to adopt D.A.S. and terminate the parental rights of the biological father, W.P.S. Upon trial, the Trial Court terminated W.P.S.'s parental rights on statutory grounds of abandonment. We affirm.

http://www.tba2.org/tba_files/TCA/2007/das_111607.pdf


MBNA AMERICA BANK, N.A. v. TREY BAKER

Court: TCA

Attorneys:

Trey Baker, Springfield, Tennessee, Pro Se.

Timothy L. Edington, Knoxville, Tennessee, for the appellee, MBNA America Bank, N.A.

Judge: KOCH

This appeal involves a dispute over a credit card debt. The holder of the card made over $16,000 in charges on the card and then declined to pay the bank that issued the card. The bank pursued arbitration under the credit card agreement and was awarded $19,241.74. When the cardholder declined to pay, the bank filed suit in the Chancery Court for Robertson County to enforce the arbitration award. The cardholder insisted that the trial court lacked subject matter jurisdiction and that he had no contractual obligation to the bank to repay the debt. He also asserted that his wife should be joined as a party. The trial court granted the bank's motion for summary judgment, and the cardholder has appealed. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2007/mbna_111607.pdf


DOROTHY NECESSARY v. LIFE CARE CENTERS OF AMERICA, INC. D/B/A LIFE CARE CENTER OF JEFFERSON CITY

Court: TCA

Attorneys:

Kyle E. Hedrick and Glenna M. Ramer, Chattanooga, Tennessee, for the Appellant, Life Care Centers of America, Inc. d/b/a Life Care Center of Jefferson City.

F. Dulin Kelly and Clinton L. Kelly, Hendersonville, Tennessee, for the Appellee, Dorothy Necessary, surviving spouse of Paul G. Necessary, deceased.

Judge: SWINEY

This appeal involves the validity of an arbitration agreement entered into by Dorothy Necessary ("Plaintiff") while signing documents on her husband's behalf to have him admitted to a skilled nursing facility. Plaintiff had her husband's oral express authority to sign all paperwork necessary for his admission to the facility. Plaintiff claims, however, that this express authority did not include the power to enter into an arbitration agreement on her husband's behalf. The Trial Court agreed and refused to enforce the arbitration agreement in this wrongful death action filed by Plaintiff on her deceased husband's behalf. We vacate the judgment of the Trial Court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2007/necessaryd_111607.pdf


ROBERT G. O'NEAL, d/b/a R & R CONSTRUCTION CO. v. PAUL E. HENSON, ET AL.

Court: TCA

Attorneys:

Edward L. Boring and Keith Harding Grant, Pikeville, Tennessee, for the appellant, Robert G. O'Neal.

Keith S. Smartt, McMinnville, Tennessee, for the appellees, Paul E. Henson and Patricia Nell Henson.

Judge: FARMER

This is a construction contract dispute. The trial court entered judgment in favor of Defendants buyers/Counter-Plaintiffs in the amount of $72,418, less an offset in the amount of $48,713.15 for payments due to Plaintiff Builder; attorney's fees; and costs. Plaintiff Builder appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2007/onealr_111607.pdf


JEFFERY L. PATTERSON, JR., v. WAYNE COUNTY BOOT CAMP, et al.

Court: TCA

Attorneys:

Jeffery L. Patterson, Jr., Mountain City, Tennessee, pro se.

Jeffery L. Patterson, Jr., Mountain City, Tennessee, pro se. Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, Nashville, Tennessee, for Appellees.

Judge: FRANKS

The Trial Court dismissed petitioner's application for a writ of certiorari to review the decisions of respondent's Disciplinary Board. The Trial Judge ruled petitioner failed to allege the required statutory grounds for the issuance of the writ. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/pattersonj_111607.pdf


CLIFFORD RICE v. GLEN TURNER ET AL.

Court: TCA

Attorneys:

Clifford Rice, Whiteville, Tennessee, Pro Se.

James I. Pentecost and K. Michelle Booth, Jackson, Tennessee, for the appellees, Glen Turner, Robert Adams, Fontella Mason, and Sheila Martin.

Judge: KOCH

This appeal involves a prisoner's challenge to the actions of an administrative disciplinary board at a privately operated prison in Hardeman County. After exhausting his administrative remedies, the prisoner filed a petition for a common-law writ of certiorari in the Chancery Court for Davidson County, naming several prison employees as defendants. The trial court dismissed the petition for improper venue and declined to transfer the case to the appropriate court because the petition failed to state a claim upon which relief could be granted. The prisoner appealed. We affirm the dismissal of the prisoner's petition.

http://www.tba2.org/tba_files/TCA/2007/ricec_111607.pdf


IN RE: THE ADOPTION OF T.Z.T.

Court: TCA

Attorneys:

Randy Hillhouse, Lawrenceburg, Tennessee, for the appellants, M.D. B. and B. M. B.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellee, C. E. T.

Judge: COTTRELL

Maternal grandparents of a two-year-old girl filed a Petition for Adoption seeking to terminate the parental rights of the child's Father and Mother on the ground of abandonment. The trial court found there was not clear and convincing evidence that Father abandoned his child because his failures to support and to visit the child were not willful. Accordingly, the trial court did not terminate Father's parental rights and dismissed the Petition for Adoption. The grandparents appeal. We affirm the judgment of the trial court in all respects.

http://www.tba2.org/tba_files/TCA/2007/tzt_111607.pdf


UNION REALTY COMPANY, LTD. d/b/a NORTHGATE SHOPPING CENTER v. FAMILY DOLLAR STORES OF TENNESSEE, INC., ET AL.

Court: TCA

Attorneys:

S. Newton Anderson, Gayle Boyden Lakey and Kimberly Nicole Galloway, Memphis, Tennessee, for the appellant, Family Dollar Stores of Tennessee, Inc.

Bradley E. Trammell and Jay Ebelhar, Memphis, Tennessee, for the appellant, Travelers Insurance Company.

Richard Glassman and Tameka Turner-Perry, Memphis, Tennessee, for the appellee, Union Realty Company, Ltd., d/b/a Northgate Shopping Center.

Judge: FARMER

This dispute arises from a premises liability action filed against Plaintiff property owner Union Realty Company. The trial court determined that Defendant Travelers Property Casualty Company had an obligation to insure Union Realty as a named insured under a public liability contract of insurance issued to Defendant Family Dollar store. Family Dollar and Travelers appeal; we affirm in part, vacate in part, and reverse in part.

http://www.tba2.org/tba_files/TCA/2007/unionrealty_111607.pdf


TED WARD, ET AL. v. NATIONAL HEALTHCARE CORPORATION, ET AL.

Court: TCA

Attorneys:

F. Michael Fitzpatrick and Dan D. Rhea, Knoxville, Tennessee, for the appellants, National Healthcare Corporation f/k/a National Health Corporation, HNC/Delaware, Inc., NHC, Inc., National Healthcare/Knoxville, LLC, d/b/a NHC Healthcare, Knoxville.

M. Chad Trammell and S. Drake Martin, Jackson, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the appellees, Ted Ward and Linda Davis, as Co-Administrators Ad Litem of the Estate of Clifford Ward, deceased.

Judge: CLEMENT

In this interlocutory appeal, four corporate defendants contest the trial court's ruling that Rutherford County is the proper venue. The defendants contend Knox County is the proper venue because a material defendant has its principal office in Knox County and the decedent, whose alleged injuries while a resident of a nursing home are the basis of this action, resided in the Knox County defendant's nursing home when the alleged injuries occurred. The trial court stated that its reason for denying the motion was that the Knox County defendant was not the "significant defendant." We have determined the trial court applied an erroneous legal standard in reaching its decision because the Knox County defendant need not be the "significant defendant," only a "material defendant," and the Knox County defendant is a material defendant. The decedent was a resident of Knox County, residing in the Knox County defendant's nursing home when the alleged injuries occurred; accordingly, venue lies in Knox County. We therefore reverse the ruling of the trial court and remand with instructions to transfer the action to Knox County.

http://www.tba2.org/tba_files/TCA/2007/wardt_111607.pdf


STATE OF TENNESSEE v. CHRISTOPHER CARTER

Court: TCCA

Attorneys:

Robert Wilson Jones, District Public Defender; Garland Erguden (on appeal) and Diane Thackery (at trial), Assistant District Public Defenders, for the appellant, Christopher Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; William A. Tillner, Assistant Attorney General; William L. Gibbons, District Attorney General; Greg Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

A Shelby County grand jury indicted the defendant, Christopher Carter, on five counts of aggravated assault. Following a jury trial, the defendant was convicted of one count of aggravated assault, a Class C felony, and one count of assault, a Class A misdemeanor. The state dismissed the remaining counts, and the trial court sentenced the defendant to fifteen years in the Department of Correction as a career offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury's guilty verdicts. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant's convictions, and we therefore affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/carterc_111607.pdf

WITT dissenting
http://www.tba2.org/tba_files/TCCA/2007/carterc_DIS_11607.pdf


STATE OF TENNESSEE v. JAMES TAYLOR, JR.

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender, and Kari I. Weber, Assistant Public Defender, for the appellant, James Taylor, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Mike Dunavant, District Attorney General; and Tracey Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James Taylor, Jr., was found guilty by a Lauderdale County jury of aggravated assault (Class C felony) and assault (Class A misdemeanor). He was sentenced to six years for his aggravated assault conviction and to eleven months and twenty-nine days for his assault conviction. On appeal, he contends that: (1) the evidence was insufficient to support either of his convictions; (2) the trial court erred in failing to dismiss the aggravated assault indictment because it did not allege the type of deadly weapon used by the defendant; (3) the trial court should have excluded testimony that the defendant was the subject of a restraining order; and (4) his sentence was improper. After review, we conclude that no reversible error exists and affirm the judgments from the trial court.

http://www.tba2.org/tba_files/TCCA/2007/taylorj_111607.pdf


TODAY'S NEWS

Legal News
Legislative News
Upcoming

Legal News
Grade changing sparks questions from S.C. bar
The South Carolina Bar is asking the state supreme court to explain more fully why it changed the bar exam results for 20 test-takers, including the daughters of a trial judge and a state legislator with judiciary responsibilities.
Read more from The State newspaper
Bush calls for reforms to confirmation process
President Bush criticized the judicial confirmation process in remarks Thursday to the Federalist Society, saying that the current system "is making it more difficult to persuade decent and intelligence [sic] people to accept the call to public service."
Read the President's speech
Read more about the Federalist Society's 25th Anniversary bash and how the organization has developed from a debating society for law students to a major power in judicial politics.
Here's the story in the Washington Post
Nashville Bar names new fellows
The 2007 class of fellows of the Nashville Bar Foundation were inducted Nov. 10. NBF President Matt Painter presented the certificates to Julie A. Boswell, W. David Bridgers, George H. Cate III, James A. Crumlin Jr., Angelita Blackshear Dalton, Frances C. Fenelon, John S. Hicks, Johbn R. Jacobson, Carla L. Lovell, Jerrilyn R. Manning, Karen S. Neal, Amanda J. McClendon, Jefferson C. Orr, Raymond G. Prince, W. Scott Sims, Paul G. Summres, David K. Taylor, Thor Y. Urness and Jude A. White.

Prof. Jerry Black honored for legal excellence
UT College of Law professor Jerry Black was recognized with the B. Rex McGee Award for the Pursuit of Legal Excellence by members of the Knox County bench and bar at an awards luncheon Thursday. The award is given to a member of the legal profession who exemplifies the traits of the late Rex McGee, including maintaining excellence in legal scholarship, practicing the profession with civility, devoting time to mentoring young lawyers, and maintaining respect and empathy for individuals brought within the justice system.

The way it was: Ginsburg recounts her early years in law
Being a wife, a mother, and a lawyer wasn't a sign of social reform so much as it was a novelty in the 1950s when Ruth Bader Ginsburg entered the profession. The Supreme Court justice recalls her first steps in the law in a Legal Times interview.
Read the Legal Times interview
Bush names 21 to fill Justice, court openings
In addition to naming a new No. 2 in the Justice Department, President Bush yesterday filled four other top department posts and nominated 16 men and women to fill vacancies in various U.S. Attorney's Offices and federal courts nationwide.
Read more from McClatchy Newspapers
Legal Aid opens Sevierville office
Legal Aid of East Tennessee will begin using Tennessee Supreme Court Justice Gary Wade's Sevierville office to meet with clients. Wade's office is located at 134 Court Avenue on the second floor of the Victoria Mall. Legal aid staff will be at the office on the second Wednesday of each month from 1-4 p.m., and by appointment.
Read more in the Sevier County News
Courthouse hosts adoption ceremony
Hamblen County Chancellor Thomas (Skip) Frierson will open his Morristown courthouse on Saturday for a 9 a.m. adoption ceremony to celebrate National Adoption Day. With help from the Hamblen County Bar Association, the children will leave the courthouse with new permanent families, new names and new Teddy bears. This is the fourth year the court has participated in the event.
Read more from the AOC
Legislative News
Democrat win in special election keeps senate even
Democrat Andy Berke easily carried both Marion County and parts of Hamilton County to win a special senate election Thursday. He will replace former state Sen. Ward Crutchfield, who resigned from the General Assembly earlier this year after pleading guilty to a federal bribery charge in the Tennessee Waltz corruption sting. Berke, an attorney, won 63 percent of the vote against businessman Oscar Brock, a Republican and son of former U.S. Sen. Bill Brock.
Read more in the Knoxville News Sentinel
Upcoming
NBA annual meeting and banquet set for Dec. 6
The Nashville Bar Association annual meeting and banquet will be Dec. 6 at Loews Vanderbilt Plaza. A reception for the general membership will begin at 5:30 p.m., with dinner and the program at 7 p.m. The passing of the gavel from President Lela Hollabaugh to President-elect Scott Sims and introduction of the NBA officers for 2008 will highlight the evening, along with the presentation of awards for public service and other activities.


 
 
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