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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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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.

CINCINNATI INSURANCE COMPANY v. MID-SOUTH DRILLERS SUPPLY, INC., ET AL.
CORRECTION


Court: TCA

Attorneys:

John M. Neal, Knoxville, Tennessee, for the appellant Cincinnati Insurance Company.

D. Andrew Saulters, Deron H. Brown, Nashville, Tennessee, for the appellee, Mid-South Drillers Supply, Inc.

C. Bradford Marsh, J. Christopher Fox, II, Atlanta, Georgia; Elizabeth Lane Guenther, Russell B. Morgan, Nashville, Tennessee, for the appellee, Eaton Aeroquip, Inc.

Judge: ANDERSON

The issue presented by this appeal is whether a trial court may exercise its discretion granted under rules 34 and 37 of the Tennessee Rules of Civil Procedure to dismiss a party's case for spoliation of evidence where the spoliation may have been inadvertent rather than intentional. We hold that the trial court has the discretion to sanction a party by dismissal of its case where the party's destruction of evidence severely prejudices an adverse party's defense irrespective of whether the destruction was inadvertent or intentional. We accordingly affirm the trial court judgement.

http://www.tba2.org/tba_files/TCA/2008/cincinatti_Corr_013108.pdf


CARLTON CLARK v. TENNESSEE BOARD OF PROBATION AND PAROLES

Court: TCA

Attorneys:

Carlton Clark, Tiptonville, Tennessee, appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, Civil Rights and Claims Division, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Board of Probation and Paroles.

Judge: SUSANO

The petitioner, Carlton Clark ("Prisoner"), is serving an eight-year prison sentence for drug possession. He appeals the decision of the Tennessee Board of Probation and Paroles ("Parole Board" or "Board") denying him parole, arguing that the Board's decision was wrongfully based solely upon the "seriousness of [his] offense," and further that the Board wrongfully rescheduled his next parole hearing for three years after the initial hearing, rather than one year. The state argues that the courts lack jurisdiction over Prisoner's appeal because the initial filing, on the very expiration date of the 60-day statutory deadline, was not verified by an affidavit, and, therefore, the trial court never acquired jurisdiction and the Parole Board's ruling became final. The trial court agreed with the state and dismissed the case with prejudice. We affirm.

http://www.tba2.org/tba_files/TCA/2008/clarkc_013108.pdf


FOSTER BUSINESS PARK, LLC v. J & B INVESTMENTS, LLC, ET AL.

Court: TCA

Attorneys:

Mathew R. Zenner and Donald Capparella, Nashville, Tennessee, for the appellant, Foster Business Park, LLC.

Sam J. McAllester, III, and William J. Haynes, III, for the appellee, J & B Investments, LLC.

Roger G. Jones and Austin L. McMullen, Nashville, Tennessee, for the appellee, The Bank of Nashville.

Judge: CLEMENT

The plaintiff, a debtor under a promissory note, brought this action against two defendants, the bank that issued a promissory note to the plaintiff and the holder of the note for charging and attempting to collect a rate of interest the plaintiff contends was usurious. In the Complaint, the plaintiff contends that two defendants engaged in unconscionable conduct under Tenn. Code Ann. section 47-14- 117(c) and unfair and deceptive practices in violation of the Tennessee Consumer Protection Act. The bank's conduct at issue pertains to its issuance of a promissory note to Foster that contained a default rate of interest of 24 percent, which the plaintiff contends is usurious. The conduct of the other defendant, the holder of the note, pertains to its attempts to collect the default rate of interest. The Chancellor dismissed the plaintiff's complaint upon the defendants' Tenn. R. Civ. P. 12.02(6) motions to dismiss, concluding that the interest was not usurious, and therefore, the complaint failed to state a claim upon which relief could be granted. We affirm.

http://www.tba2.org/tba_files/TCA/2008/fosterb_013108.pdf


H & R BLOCK EASTERN TAX SERVICES, INC. v. STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE, DIVISION OF INSURANCE

Court: TCA

Attorneys:

Gary C. Shockley and Courtney H. Gilmer, Nashville, Tennessee, for the appellant, H&R Block Eastern Tax Services, Inc.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Sarah Ann Hiestand, Senior Counsel, Financial Division, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Commerce and Insurance, Division of Insurance.

Judge: SUSANO

This case presents a pure and novel question of law regarding the Tennessee statutory definition of insurance. At issue is the "Peace of Mind" program ("POM program") offered by H&R Block Eastern Tax Services, Inc. ("Block") to customers who hire Block to prepare their tax returns. Essentially, Block offers its customers the option of purchasing, for an additional fee, an enhanced version of Block's basic guarantee of the accuracy of its tax-preparation services. Block promises customers who purchase the POM program that, in the event Block makes an error which results in the customer's tax liability being initially underestimated, Block will pay up to $5,000 of the customer's newly revealed tax liability. The Tennessee Department of Commerce and Insurance ("the State") contends - and the Commissioner of that department declared - that the POM program is a contract of insurance under T.C.A. section 56-7-101 as it was written when this case began, and, therefore, Block is subject to various penalties under that statute because it was not licensed to sell insurance. The trial court upheld the Commissioner's ruling. We disagree with both the Commissioner and the trial court, and find that the POM program is not properly characterized as insurance under the statute. Accordingly, we reverse.

http://www.tba2.org/tba_files/TCA/2008/h&rblock_013108.pdf


STATE OF TENNESSEE v. KARL DANIEL FORSS
With Dissenting Opinion


Court: TCCA

Attorneys:

Barry H. Valentine, Newport, Tennessee, for the Appellant, Karl Daniel Forss.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; James B. Dunn and Amanda H. Inman, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Karl Daniel Forss, appeals the sentencing decision of the Cocke County Circuit Court. Under the terms of a plea agreement, Forss entered "open" pleas of guilty to the offenses of attempted aggravated robbery, aggravated assault, and aggravated criminal trespass. The plea agreement provided that the length and manner of the sentences would be determined by the trial court, that Forss would be sentenced as a Range I, standard offender, that the aggravated assault conviction would merge with the attempted aggravated robbery conviction, and that the misdemeanor sentence for the aggravated criminal trespass conviction would run concurrently with the attempted aggravated robbery conviction. Following the sentencing hearing, the trial court imposed an effective sentence of six years in confinement. Forss now appeals the length and manner of his six-year felony sentence. After a thorough review of the record and the arguments of the parties, we modify Forss' six-year sentence for attempted aggravated robbery to reflect a sentence of four years. We affirm the denial of alternative sentencing. We remand to the trial court for entry of an amended judgment to reflect this sentencing modification.

http://www.tba2.org/tba_files/TCCA/2008/forssk_013108.pdf

THOMAS dissenting
http://www.tba2.org/tba_files/TCCA/2008/forssk_DIS_013108.pdf


Conflict of Interest: Health Care Network Arrangement

TN Attorney General Opinions

Date: 2008-01-31

Opinion Number: 08-15

http://www.tba2.org/tba_files/AG/2008/ag_08_15.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
Second applicant files for chancery court
Julie Murphy Burnstein with Boult, Cummings, Conners and Berry PLC has applied for the 20th Judicial District Chancery Court vacancy created by the appointment of Chancellor Richard Dinkins to the Tennessee Court of Appeals. She joins Baker Donelson Bearman Caldwell & Berkowitz PC attorney Matthew Sweeney in vying for the position. Applications must be submitted to the Judicial Selection Commission by Feb. 13.

FBI investigating possible sub prime fraud
The FBI said this week it is investigating 14 companies for possible accounting fraud, insider trading or other violations in connection with home loans made to risky borrowers. Agency officials did not identify the companies but called the investigation a wide-ranging probe involving mortgage lenders and investment banks.
The Memphis Daily News has more
BAR/BRI class action close to settlement
A class action lawsuit alleging that BAR/BRI's parent company Thomason Corporation violated federal anti-trust laws and the common law of unjust enrichment may be settled in April, pending court approval. The proposed settlement would provide $13 million to reimburse those who purchased a BAR/BRI bar review course between March 15, 2001 and Jan. 4, 2008. To be included in the settlement, claim forms must be postmarked by May 15.
Learn more or download a claim form here
No more courts in the courthouse
Beginning in February, there will be no courts in the Macon County Courthouse. General Sessions and Juvenile Court Judge Ken Witcher held what will probably be the last juvenile court hearing in the upstairs courtroom of the courthouse this past Thursday. With his move, all courts in Macon County will be located at the more modern Justice Center complex.
Read more in the Macon County Times
Memphis lawyer balances service and law
Ricky E. Wilkins runs his own law office, represents the Memphis Charter Commission, serves as treasurer of the Memphis Bar Association, is active in the Ben F. Jones chapter of the National Bar Association and sits on the Memphis Housing Authority Board. How does he find time to do all that and still practice law? The Memphis Daily News interviewed Wilkins for its Law Talk column and asked that very question.
Read what he had to say
Generational divide evident in fashion choices
The generational divide is playing out in law firm fashion wars with younger lawyers favoring business casual and older lawyers tending to wear more traditional business attire. The Wall Street Journal reports that some associates are resisting suggestions to improve their attire, with negative career ramifications. A number of firms are responding with programs to teach associates about dressing well.
Read about their efforts here
Legislative News
Leaders ask for Ford health update
Legislative leaders from both parties are asking for an update on the health of state Sen. Ophelia Ford after being told earlier this month she would miss several weeks of the legislative session. Ford has been hospitalized since early December. In response to inquiries about her condition, the family asked her doctor to issue a statement that she "has a medical condition causing malnutrition, dehydration and anemia...and requires continued hospitalization."
WSMV-TV has the story
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site

 
 
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