Wednesday, January 26, 2011
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Ethics CLE highlights common 'traps'

Get a head start on 2011 CLE requirements, and the all-important ethics hours, with an entertaining session on dealing with tricky ethical issues. The TBA Young Lawyers Division and TennBarU present "Encountering & Avoiding Ethical Traps" Feb. 4 in Knoxville, Memphis and Nashville. This three-hour seminar will provide a unique and entertaining look at a range of ethical issues that attorneys face. Attendees will watch a series of video presentations containing ethical situations and engage in interactive discussion to better recognize and avoid common ethical traps.

Learn more about the seminar
TODAY'S OPINIONS
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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.
ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL.
With Dissenting Opinion

Court: TSC

Attorneys:

S. Drake Martin and Michael Chad Trammell, Jackson, Tennessee; Richard C. May, Knoxville, Tennessee; and Brian G. Brooks, Greenbrier, Arkansas, for the appellant, Kimberly S. French.

Alaric H. Henry and Thomas Mitchell Horne, Chattanooga, Tennessee, for the appellees, Stratford House, OP Chattanooga, Inc., Tandem Health Care, Inc., and Tandem Health Care of Ohio, Inc.

Clifford Wilson and Melissa Bradford Muller, Nashville, Tennessee, for the appellees, HP/Stratford House, Inc. and HP/Holding, Inc.

Karla C. Hewitt, Nashville, Tennessee, for the amicus curiae, Tennessee Citizen Action.

Wayne Allen Ritchie II, Nashville, Tennessee, for the amicus curiae, Tennessee Association for Justice.

F. Laurens Brock, David J. Ward, and T. Ryan Malone, Chattanooga, Tennessee; and John Lyell, Nashville, Tennessee, for the amicus curiae, Tennessee Health Care Association.

Judge: WADE

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act. The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals. We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf

KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf
SHELBY COUNTY HEALTH CARE CORPORATION, D/B/A REGIONAL MEDICAL CENTER v. JOHN BAUMGARTNER, ELIZABETH BAUMGARTNER, A/K/A DARAY BAUMGARTNER, NATIONWIDE MUTUAL INSURANCE COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY

Court: TCA

Attorneys:

John C. Speer, Colleen D. Hitch, and Tiffany A. Yates, Memphis, Tennessee; Jody Manire Kris and Kelly Thompson Cochran, Washington, D.C., for the Defendant/Appellant, Hartford Accident & Indemnity Co.

Curtis H. Goetsch, Germantown, Tennessee, for the Plaintiff/Appellant, Shelby County Health Care Corporation d/b/a Regional Medical Center.

Parks T. Chastain and Gordon C. Aulgur, Nashville, Tennessee, for the Defendant/ Appellee, Nationwide Mutual Insurance Company.

Robert E. Cooper, Jr., Tennessee Attorney General & Reporter; Michael E. Moore, Solicitor General, and Shayna Abrams, Assistant Attorney General, as intervenor in defense of the constitutionality of Tennessee Code Annotated section 29-22-104(b)(1).

Judge: KIRBY

This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a third-party tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient's medical expenses. Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor's insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment. The trial court granted in part the hospital's motion for summary judgment. Against the patient's own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor's insurance company, the hospital was awarded an amount equal to the policy coverage limit. The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital's recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital's lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien.

http://www.tba2.org/tba_files/TCA/2011/baumgartnerj_012611.pdf
ESTATE OF CAROLYN A. MONTGOMERY v. DANIEL KUETER, M.D.

Court: TCA

Attorneys:

B. Elizabeth Roderick and Richard A. Smith, Chattanooga, Tennessee, for the appellant, Daniel Kueter, M.D.

H. Franklin Chancey, Cleveland, Tennessee, for the appellee, Estate of Carolyn A. Montgomery.

Judge: SWINEY

We granted the application of Daniel Kueter, M.D. ("Defendant") for a Tenn. R. App. P. 9 Interlocutory Appeal on the issue of whether the Trial Court erred in reinstating this case to its active docket after it had been dismissed without prejudice over a year earlier. We find and hold that although plaintiff was not entitled to relief under Tenn. R. Civ. P. 60.02, the Trial Court did not err when it granted Plaintiff's motion to enter an agreed order nunc pro tunc reinstating this case. We, therefore, affirm the Trial Court's order.

http://www.tba2.org/tba_files/TCA/2011/montgomeryc_012611.pdf
RICHARD SWECKER, et al., v. STEVEN MICHAEL SWECKER, et al., and, DINAH SLUDER, et al., IN RE: ESTATE OF JOSEPH JAMES SWECKER, STEVEN SWECKER, et al., v. RICHARD ALLEN SWECKER

Court: TCA

Attorneys:

Denise Terry Stapleton, Morristown, Tennessee, and W. Lewis Jenkins, Dyersburg, Tennessee, for the appellants, Steven Michael Swecker and Joseph Grant Swecker.

Kenneth Clark Hood, Greeneville, Tennessee, for the appellees, Richard Allen Swecker and Maria Swecker.

Judge: FRANKS

Plaintiffs brought this action to establish a partnership with the deceased against the estate's personal representative and others. Defendants answered, denying the allegation that a partnership existed, and filed a counter-complaint, asserting the estate should be reimbursed for plaintiffs' mismanagement of the farm, and for monies the plaintiffs removed from the estate's bank account. Following an evidentiary hearing, the Trial Court held that deceased and plaintiff had entered into a partnership and that the partnership would be wound up by the Court and the partnership assets distributed. Also, the Trial Court held that plaintiffs would be required to pay rent on the house they occupied on the farm for several years. On appeal, we affirm the finding that a partnership existed, but reverse the Trial Court's holding that plaintiffs owed the estate rent for occupancy of the house on the farm. We remand, with directions to the Court to wind up the partnership.

http://www.tba2.org/tba_files/TCA/2011/sweckerr_012611.pdf
LESA C. WILLIAMS, ET AL. v. RENARD A. HIRSCH, SR.

Court: TCA

Attorneys:

Winston S. Evans, Nashville,Tennessee, for the appellants, Lesa C. Williams, et al.

Gary Marcel Kellar, Brentwood, Tennessee, for the appellee, Renard A. Hirsch, Sr.

Judge: COTTRELL

This application for an interlocutory appeal concerns a client's standing to seek a declaratory judgment regarding the amount of fees to be paid to one of the three attorneys who represented her in a personal injury suit. The trial court dismissed the client's complaint for lack of standing but granted the client permission to appeal pursuant to Tenn. R. App. P. 9. We concur with the trial court that an interlocutory appeal will prevent needless, expensive and protracted litigation. We also conclude that the client has a real interest in the litigation, and we thus reverse the trial court's order dismissing the client's complaint.

http://www.tba2.org/tba_files/TCA/2011/williamsl_012611.pdf
STATE OF TENNESSEE v. ROBERT A. CANTRELL

Court: TCCA

Attorneys:

Joe M. Brandon, Jr., Smyrna, Tennessee, for the appellant, Robert A. Cantrell.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Thomas E. Parkerson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Robert A. Cantrell, was convicted by a Rutherford County jury of the sale of .5 grams or more of cocaine, a Class B felony, and was sentenced by the trial court as a Range II multiple offender to sixteen years in the Department of Correction. He raises three issues on appeal: (1) whether the trial court erred by not declaring a mistrial following a bomb threat and ensuing building evacuation that took place during voir dire; (2) whether his right to trial by a fair and impartial jury was prejudiced by the jurors' exposure to the bomb threat and publicity surrounding the case; and (3) whether the evidence was sufficient to sustain the conviction. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/cantrellr_012611.pdf
STATE OF TENNESSEE v. CHUNCY LESOLUE HOLLIS

Court: TCCA

Attorneys:

Larry Copeland (at trial) and Joseph S. Ozment (on appeal), Memphis, Tennessee, for the appellant, Chuncy Lesolue Hollis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Garry G. Brown, District Attorney General; and Edward L. Hardister and Harold E. (Hal) Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Chuncy Lesolue Hollis, was convicted by a Gibson County jury of first degree premeditated murder and sentenced to life imprisonment. In a timely appeal to this court, he challenges the sufficiency of the evidence and argues that the trial court erred by issuing an expanded jury instruction on the element of premeditation. Based on our review, we conclude that although the evidence was sufficient to sustain the jury's finding that the defendant premeditated the killing, the trial court committed reversible error by improperly commenting on the evidence and giving an incomplete statement of the law in its expanded premeditation instruction. Accordingly, we reverse the conviction and remand for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/hollisc_012611.pdf
STATE OF TENNESSEE v. CRAIG EDWIN JAMES

Court: TCCA

Attorneys:

Perry A. Craft, Brentwood, Tennessee, for the Appellant, Craig Edwin James.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

The Defendant, Craig Edwin James, was convicted of speeding in Rutherford County General Sessions Court and appealed his conviction to the Rutherford County Circuit Court. Following a de novo bench trial, the Defendant was convicted of speeding, a Class C misdemeanor, fined five dollars, and ordered to pay $624 in court costs. On appeal, the Defendant contends: (1) his General Sessions trial was conducted in violation of both Tennessee statute and the United States and Tennessee Constitutions; (2) the designation of his speeding violation as criminal rather than civil violated his right to equal protection; and (3) the United States Department of Transportation improperly limits state sentencing discretion in violation of the Supremacy Clause. After a thorough review of the record and applicable law, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/jamesc_012611.pdf
DOUGLAS JORDAN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Gina Lewis, Knoxville, Tennessee, for the appellant, Douglas Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Michael L. Flynn, District Attorney General, and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

A Blount County jury convicted the petitioner, Douglas Jordan, of second degree murder. The trial court sentenced the petitioner to twenty-three years in the Tennessee Department of Correction. On direct appeal, this court affirmed his conviction and sentence. The petitioner sought post-conviction relief, and the post-conviction court found that the state suppressed evidence but that the evidence was not material to the defense. On appeal, the petitioner argues that (1) the state withheld favorable, material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the post-conviction court erred by applying a sufficiency of the evidence standard to the materiality prong of the Brady test; (3) the state's suppression of evidence violated Article 1, sections 1 and 2, of the Tennessee Constitution; and (4) in the alternative, the petitioner's trial counsel provided ineffective assistance by failing to properly investigate the case. Following our thorough review, we conclude that the state failed to disclose evidence that was both favorable and material to the defense in violation of the petitioner's right to due process. Therefore, we reverse the judgment of the post-conviction court and remand the case for a new trial.

http://www.tba2.org/tba_files/TCCA/2011/jordand_012611.pdf
GEORGE T. McCLAIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

George T. McClain, Nashville, Tennessee, pro se (on appeal); and Jennifer Booth and Virginia Flack, Assistant District Public Defenders (at trial), for the appellant, George T. McClain.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The Petitioner, George T. McClain, appeals the Davidson County Criminal Court's denial of post-conviction relief from his conviction for sale of less than one-half gram of cocaine, a Class C felony. See T.C.A. section 39-17-417 (2010). On appeal, he contends that (1) the trial court imposed illegal sentences and (2) trial counsel rendered ineffective assistance of counsel. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/mcclaing_012611.pdf
STATE OF TENNESSEE v. HEATHER RICHARDSON

Court: TCCA

Attorneys:

John G. Mitchell, III, Murfreesboro, Tennessee, for the appellant, Heather Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Jennings Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

In this interlocutory appeal, the Appellant, Heather Richardson, appeals the Rutherford County Circuit Court's order denying her relief from the prosecutor's denial of her application for pretrial diversion. The State concedes that the district attorney general abused his discretion in denying the application. Upon review, we reverse the circuit court's order and remand for the trial court to order the prosecutor to grant the Appellant pretrial diversion.

http://www.tba2.org/tba_files/TCCA/2011/richardsonh_012611.pdf
STATE OF TENNESSEE v. GERRY TALLANT

Court: TCCA

Attorneys:

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant, Gerry Tallant.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the appellee.

Judge: OGLE

The appellant, Gerry Tallant, was convicted by a Shelby County Criminal Court jury of first degree murder, for which he received a life sentence. On appeal, the appellant contends that the evidence is insufficient to support his conviction, that the trial court erred when it instructed the jury on criminal responsibility, and that the State's closing argument was improper. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/tallantg_012611.pdf
STATE OF TENNESSEE v. TRESTAN LEMARK YARBROUGH

Court: TCCA

Attorneys:

William B. "Jake" Lockert, III, District Public Defender; and Haylee Bradley-Maples, Assistant Public Defender, for the appellant, Trestan Lemark Yarbrough.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa C. Donegan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Trestan Lemark Yarbrough, appeals the revocation of his probation and reinstatement of his original sentence for his convictions for facilitation of aggravated assault and two counts of aggravated assault, arguing that the trial court abused its discretion by imposing a sentence that was more severe than necessary to achieve the purposes set forth in the sentencing guidelines. Following our review, we affirm the trial court's order revoking the defendant's probation and reinstating his original sentence.

http://www.tba2.org/tba_files/TCCA/2011/yarbrought_012611.pdf
TODAY'S NEWS
Legal News
General Assembly News
U.S. Supreme Court
Upcoming
Career Opportunities
TBA Member Services
Legal News
Obama 'gently knocks' lawyers in capitol speech
David Ingram writes in the National Law Journal today that although President Barack Obama trained as a lawyer and taught law for a living, lawyers were among his targets in the State of the Union speech last night. On two issues -- the tax code and medical costs -- Obama pointed the finger at lawyers as part of the problem. His comments on the tax code called out lawyers and others who help corporations "work the system." On health care, Obama reiterated his openness to "medical malpractice reform to rein in frivolous lawsuits."
Read Ingram's piece on Law.com
Juvenile court chief leaves Hamilton County post
Longtime Hamilton County Juvenile Court Administrator Chris Albright left his position on Friday after 18 years in the job, according to Judge Suzanne Bailey. The move came as a surprise to most, but Bailey did not elaborate on the circumstances surrounding the departure.
Chattanoogan.com has the story
Missouri lawyer added to Nashville schools suit
Plaintiffs suing Metro Nashville Public Schools over the district's recently adopted student assignment plan have hired Kansas City attorney Arthur Benson, who is known for victory in a well-known Missouri desegregation case. But attorneys haven't been able to land outside legal aid from a national organization as requested by U.S. District Court Judge John Nixon, who says there is a disparity in resources between the plaintiff and defendant. Plaintiffs' lawyers say they have reached out to the NAACP Legal Defense Fund, American Civil Liberties Union and the AFL-CIO, among others, without success.
The Nashville City Paper reports
Nashville lawyers amend creditors' rights book
Bradley Arant Boult Cummings partners William L. Norton III and Roger G. Jones have co-authored the 2010 edition of the Norton Creditors' Rights Handbook. The handbook, published by ThomsonReuters, outlines the major steps in the debtor-creditor relationship, analyzes important laws and regulations, offers strategies for avoiding creditor traps and pitfalls, and includes forms used in various transactions. Norton and Rogers have worked together for over 20 years and are members of the firm's Bankruptcy, Restructuring and Distressed Investing Group.
Learn more about the book
Gordon kicks off lawyer conversations series
The Memphis Bar Association kicked off a new series of lunchtime sessions today with the first series speaker, west Tennessee trial attorney J. Houston Gordon. The lunchtime events will feature conversations with local lawyers of distinction. Gordon was to speak about his background, development of a successful law practice, significant cases he has handled, his political career and his philosophy regarding the practice of law.
The Memphis Daily News reports
Online searches for federal documents to improve
Thomas Bruce, co-founder of the world's first legal information website at Cornell Law School, will be heading a new project to improve digital access to federal legislative information. Bruce will work with the Library of Congress to better organize and present materials such as congressional bills, presidential documents, committee reports, public laws and the U.S. Code. Bruce recently explained the improvements in an interview with the ABA Journal.
Learn more here
Magazine ranks best public interest law schools
In its Winter 2011 issue, preLaw magazine rates law schools for their commitment to public service. City University of New York and Yale lead the pack, but 94 other schools get a B- or better. In Tennessee, the University of Tennessee College of Law got an A- while Vanderbilt University Law got a B.
Read about the study and its findings
General Assembly News
Working group tackles immigration reform
State representatives and business leaders wrestled with the impact Arizona-style immigration legislation would have on Tennessee at a panel discussion yesterday sponsored by the Nashville Business Journal. Business leaders argued that such legislation would be detrimental to work force development and international trade, and would make the state unattractive to businesses looking to relocate. State Sen. Jim Tracy, R-Shelbyville, said the legislature is working on several bills and that an e-verification system could provide part of the solution.
The paper reports on the session
U.S. Supreme Court
Scalia schools lawmakers on bill drafting
U.S. Supreme Court Justice Antonin Scalia recently spoke to members of the U.S. House of Representatives at an event organized by the Tea Party Caucus. While the appearance was criticized by some as too partisan, other Democrats saw no problem with the justice expressing his views. Among his advice to lawmakers was to be as specific as possible when writing legislation, be aware of constitutional boundaries, be skeptical of the idea of a "living Constitution," and to read the Federalist Papers.
ABA Journal has the story
Upcoming
Donald to be honored by student association
The University of Memphis Black Student Association will honor Judge Bernice Donald with the Authur S. Holmon Lifetime Achievement Award at a ceremony Feb. 1 at 7 p.m. in the Michael D. Rose Theatre, followed by a reception. President Barak Obama recently nominated Donald for a seat on the U.S. Court of Appeals for the 6th Circuit. Donald will be honored for that nomination as well as 28-plus years of service on the bench, including 15 as presiding judge of the U.S. District Court for the Western District of Tennessee. Both events are free and open to the public. For more information, call Linda Hall at 901-678-2054.
Download more information
Career Opportunities
Public interest lawyer sought in Nashville
The Disability Law & Advocacy Center of Tennessee is seeking a staff attorney in its Nashville office. The position will handle civil rights, constitutional, disability and labor and employment law, with a focus on employment discrimination and vocational rehabilitation. Though the center prefers applicants with employment or disability law experience, it is willing to consider less experienced attorneys who demonstrate a strong interest in disability rights issues. Applicants should submit a cover letter, resume and writing sample by Feb. 11 to P.O. Box 121257, Nashville, TN 37212 or to sheliam@dlactn.org.
Learn more on JobLink
TBA Member Services
Open your door to FedEx residential shipping
Did you know that the FedEx portfolio of residential services can help you reach every residential address in the U.S., including Alaska and Hawaii? That's why you should Think FedEx First. And as a TBA member, you get a valuable discount on the select FedEx residential services.
Find out how to enroll today

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.
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