Forum focuses on judicial selection debate

The debate over Tennessee's process for selecting appellate judges will soon move to the General Assembly as the Tennessee Plan comes up for sunset review this coming session. Join in a lively discussion of the issue sponsored by the Tennessee Bar Association and the Nashville Lawyer Chapter of the Federalist Society at a luncheon forum on Dec. 12 at the Standard Restaurant in downtown Nashville. Lunch will be served from noon to 12:30 p.m., with the one-hour ethics CLE program to follow. Total cost is $25. Register or find out more.

https://www.tnbaru.com/CLE/catalog_course_details.php?course=5495

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.

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05 - TN Court of Appeals
01 - TN Court of Criminal Appeals
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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.

STATE OF TENNESSEE v. BILLY L. COUCH, M.D. a/k/a Dr. B. L. COUCH, ET AL.

Court: TCA

Attorneys:

Harold R. Gunn, Humboldt, Tennessee, for the appellant, Billy L. Couch, M.D.

Robert E. Cooper, Jr., Attorney General and Reporter, and Brant Harrell, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: FARMER

Defendant doctor appeals an award of summary judgment to the State in this action brought pursuant to the Tennessee Consumer Protection Act (TCPA) in connection with the sale and administration of flu vaccine. The trial court found the defendant doctor guilty of two hundred seventy (270) violations of the TCPA for vaccinating fifty-four (54) patients with serum manufactured for the previous flu season while representing it would protect them in the upcoming flu season; awarded restitution to the patients, imposed a civil penalty of $50 per violation, and awarded $10,500 in attorney's fees and costs for investigation; and issued permanent injunction prohibiting doctor from selling or administering a flu vaccine manufactured for a previous flu season. On appeal, defendant doctor contends he established that two material facts were in dispute. We affirm.

http://www.tba2.org/tba_files/TCA/2007/couchb_120707.pdf


RICKY HOLLOWAY ET AL. v. CYRIL EVERS, ET AL.

Court: TCA

Attorneys:

Brent Horst, Nashville, Tennessee, for the appellants, Ricky Holloway, Holloway Inc.

Dalton M. Mounger, Columbia, Tennessee, for the appellees, Cyril Evers, Taylor Golden and CTR Properties.

Judge: COTTRELL

A contractor who was a partner in a subdivision development venture sold his interest to the other partners for $175,000. He subsequently filed a complaint against them alleging that they had deliberately taken advantage of his weak financial and physical condition to force him out the partnership. His complaint included claims for violation of fiduciary duty, duress and fraud. The trial court dismissed the contractor's claim on summary judgment. We affirm.

http://www.tba2.org/tba_files/TCA/2007/hollowayr_120707.pdf


IN RE B.L.C., D.A.C. & J.L.C.

Court: TCA

Attorneys:

Randy P. Lucas, Gallatin, Tennessee, for the Appellant, C.M.C.

Heather Haufler, Hendersonville, Tennessee, for the Appellant, D.B.C.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth C. Driver, Senior Counsel, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.

W. Brian Stephens, Gallatin, Tennessee, guardian ad litem for minors B.L.C., D.A.C., and J.L.C.

Judge: LEE

The issue presented in this case is whether the trial court erred in terminating the parental rights of the Mother and Father. After careful review, we reverse the trial court's judgment terminating Mother's parental rights on the ground of abandonment because (1) the Tennessee Department of Children’s Services ("DCS") failed to prove that it provided Mother the statutorily required notice that must be given to a parent as a prerequisite to a proceeding to terminate on the ground of abandonment; (2) the evidence preponderates against the conclusion that DCS proved by clear and convincing evidence that Mother willfully abandoned her children; and (3) that DCS was not relieved of its statutory duty to provide reasonable efforts to reunify Mother and children until a court of competent jurisdiction entered an order finding that Mother had abandoned the children, and not before such finding was made. We affirm the trial court's ruling terminating Father's parental rights because he took the position throughout the entire trial that he was not contesting his termination, and only for the first time on appeal raises the issue of whether the trial court erred in terminating his parental rights.

http://www.tba2.org/tba_files/TCA/2007/InReBLC_120707.pdf


CHARLES RAINES, as Administrator of the Estate of ZELMA RAINES, deceased, v. NATIONAL HEALTH CORPORATION d/b/a NHC HEALTHCARE, MURFREESBORO; NATIONAL HEALTHCORP, L.P.; NATIONAL HEALTH REALTY, INC.; NATIONAL HEALTHCARE CORPORATION; NHC, INC. a/k/a NHC, INC. - TENNESSEE; and NHC/OP, L.P.

Court: TCA

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 Realty, Inc.; National Healthcare Corporation; NHC, Inc. a/k/a NHC, Inc. - Tennessee; and NHC/OP, L.P.

Richard E. Circeo and Deborah Truby Riordan, Nashville, Tennessee, for the appellee, Charles Raines, as Administrator of the Estate of Zelma Raines, deceased.

Judge: KURTZ

This case was filed as a nursing home neglect case. The issue before the Court relates to the enforceability of an arbitration agreement signed during the nursing home admissions process by the holder of a durable power of attorney. The trial court denied the appellants' motion to compel arbitration. It held that the arbitration agreement was beyond the authority of the attorney-in-fact, and, therefore, it did not reach questions related to the capacity of the decedent to execute the durable power of attorney; nor did it address the unconscionability of the agreement. We reverse the trial court as to its ruling on the authority of the attorney-in-fact and remand for a hearing and decision on the other issues not previously reached below.

http://www.tba2.org/tba_files/TCA/2007/rainesc_120707.pdf


STATE FARM FIRE & CASUALTY COMPANY v. DARRELL SPARKS, ET AL.

Court: TCA

Attorneys:

Richard W. Wackerfuss, Matthew S. Russell, Memphis, TN, for Appellant

Louis J. Miller, Memphis, TN, for Appellees Darrell Sparks and Randy Cook.

Raymond L. Niblock, Pendente Pro Hac Vice, Fayetteville, AR, for Appellee Sharon Bennett.

John Appman, Jamestown, TN, Local Counsel for Raymond L. Niblock.

Judge: Highers

This appeal arises out of an action for declaratory judgment brought by an insurer. The insurer asked the court to determine whether its homeowners' and personal liability umbrella policies afforded coverage and required defense of a tort action filed against its insured. The tort action involved an accident that occurred at the site of an oil well, which was owned and operated by a partnership in which the insured parties were partners. The insureds' insurance policies excluded coverage for losses arising out of their "business pursuits." The trial court granted partial summary judgment to the insureds and ordered the insurer to defend and indemnify the insureds in the underlying tort action. For the following reasons, we reverse.

http://www.tba2.org/tba_files/TCA/2007/sparksd_120707.pdf


THOMAS LEN PROFFITT v. HOWARD CARLTON, WARDEN, and the STATE OF TENNESSEE

Court: TCCA

Attorneys:

Thomas Len Proffitt, appellant, pro se.

Robert E. Cooper, Attorney General & Reporter; and Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Thomas Len Profitt, appeals the Johnson County Criminal Court's dismissal of his 2007 petition for habeas corpus relief. In response, the State moved this court pursuant to Tennessee Court of Criminal Appeals Rule 20 to summarily affirm the criminal court's order. Because the record shows that the Rule 20 terms for summary affirmance are met, we grant the motion and affirm the criminal court's order.

http://www.tba2.org/tba_files/TCCA/2007/proffittt_120707.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Judge issues stay of execution
U.S. District Judge William Haynes today issued a stay of execution for Pervis Payne, a Shelby County man who was convicted of the stabbing deaths of a Millington woman and her 2-year-old daughter in 1987, the Tennessean reports. Gov. Phil Bredesen has said the state will not execute any prisoners until the U.S. Supreme Court rules on the case of two Kentucky death-row inmates who are challenging a lethal injection method used by many states.

School visit shows great potential among students
Memphis lawyer and TBA Vice President Buck Lewis was encouraged by the students he recently met as part of a TBA/Junior Achievement program aimed at getting students interested in a legal career.
Read more about the program and Lewis's experiences in the Memphis Business Journal (subscription required)
Term limits coming for Memphis council?
The Memphis Charter Commission will recommend term limits be included in charter changes to be submitted to city voters, possibly in November.
Read more in the Memphis Daily News
Hardeman County justice center work to start in early 2008
Groundbreaking for a new criminal justice complex in Hardeman County will likely occur early next year. County Mayor Willie Spencer said the new facility, estimated to cost $17.4 million, will combine the county jail and sheriff department offices with the county's circuit and general session courts.
Read more in the Jackson Sun
New book tracks Vandy law history
Curious about the history of Vanderbilt University Law School? Well, your Christmas present just got delivered. Associate Dean Don Welch and Vanderbilt University Press have just released the first book length history of the school.
Find out more
Retirement coming for top agent
The Tennessee Bureau of Investigation's special agent in charge of the Upper East Criminal Investigation Division, Robert E. Denney, is retiring today.
Read more about his 30-year career in Tri-Cities.com
TBA Member Services
Avis benefits 'try harder'
TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.


 
 
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