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Thursday, June 16, 2011

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Scopes Trial program a hit at TBA Convention

More than 300 attorneys and judges filled the Rhea County Courthouse in Dayton today to take part in the annual Bench/Bar program at the Tennessee Bar Association Annual Convention. Pulitzer Prize-winning author Ed Larson told the story of the famous Scopes case and discussed the legal issues raised in the trial, then the group adjourned to the courthouse grounds for a buffet luncheon and a tour of the Scopes Museum. In the afternoon, TBA section and committee leaders gathered to plan programming and other activities for the coming year, local bar leaders met with Board of Professional Responsibility representative Kevin Balkwill and the TBA Leadership Law class heard from author, lawyer and media analyst Mark Curriden.

See a full schedule of events and activities

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.

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

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.
CORRECTION

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.

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.

Judge: WADE

CORRECTIONS:
--Page 13, footnote 13, within the seventh line, "is" is added to the following sentence, "We agree that this is a relevant factor to...";
--Page 15, fourth line from top, the underline space prior to "et seq" is deleted;
--Page 16, second to last line, "Operative" is changed to "Operating";
--Page 18, fourth line from top, "(Miss. 2007)" is change to "(Miss. Ct. App. 2007)";
--Page 19, second paragraph, fifth line down, the extra space between "responsibility" and "for the care" is deleted.

SUMMARY:
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_COR_061611.pdf

RUDOLPH POWERS v. STATE OF TENNESSEE

Court: TSC

Attorneys:

William Dennis Massey, Michael Casey Shannon, Lorna S. McClusky, and Kemper B. Durand, Memphis, Tennessee, and Craig Cooley, New York, New York, for the appellant, Rudolph Powers.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor General; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; and John W. Campbell, Deputy District Attorney General, for the appellee, the State of Tennessee.

Larry Stewart and Patrick Wayne Norton, Nashville, Tennessee, for the amicus curiae, Dwight Adams, Kevin Curran, James Crow, and Jeffery E. Thoma.

David Louis Raybin, Nashville, Tennessee, for the amicus curiae, Ann Meng, Jennifer Thompson, Melinda Elkins, and Michele Mallin.

Judge: WADE

In separate trials, the petitioner was convicted of aggravated rape for an incident occurring in March of 1980 and of aggravated rape and robbery by use of a deadly weapon for an incident occurring in May of the same year. In 2007, the petitioner sought to have deoxyribonucleic acid ("DNA") analysis performed on the remaining evidence pursuant to the Post-Conviction DNA Analysis Act of 2001, arguing that exculpatory results would create a reasonable probability that he would not have been prosecuted or convicted on either charge. The petitioner contended that he could conclusively establish his innocence if the DNA profile developed from the evidence was uploaded into a DNA database and matched another profile in the system. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that DNA analysis was limited to a comparison between the petitioner's DNA and that collected as a part of the evidence in the case. We granted the petitioner's application for permission to appeal to determine (1) whether the General Assembly intended to permit petitioners proceeding under the Act to use DNA database matches to satisfy their burden and (2) whether the Court of Criminal Appeals' interpretation of the statute served to preclude the development of scientific evidence supportive of actual innocence. We hold that the Post-Conviction DNA Analysis Act permits access to a DNA database if a positive match between the crime scene DNA and a profile contained within the database would create a reasonable probability that a petitioner would not have been prosecuted or convicted if exculpatory results had been obtained or would have rendered a more favorable verdict or sentence if the results had been previously available. Because the criteria for ordering DNA analysis under the Aof Criminal Appeals is reversed and the cause entry of an order granting DNA analysis.

http://www.tba2.org/tba_files/TSC/2011/powersr_061611.pdf

JERRY LINDSEY v. TIM REEVES D/B/A TIM'S TREE SERVICE

Court: TWCA

Attorneys:

Mildred L. Sabbatini and Christopher M. Myatt, Memphis, Tennessee, for the appellant, Tim Reeves d/b/a Tim's Tree Service.

George L. Morrison, III and Spencer Barnes, Jackson, Tennessee, for the appellee, Jerry Lindsey.

Judge: KURTZ

The employee suffered a compensable spinal cord injury. He settled his workers' compensation claim with his employer in 2007. The settlement provided for future medical treatment in accordance with Tennessee Code Annotated section 50-6-204(a) (2008). In 2009, the employee sought authorization and payment for a hydrotherapy tub. His employer declined to authorize installation of the tub. The employee filed a motion for authorization of medical care in February 2010 and supported the motion by attaching a note from his authorized treating physician that he would "benefit" from use of the tub. The trial court granted the motion. On appeal, we reverse.

http://www.tba2.org/tba_files/TSC_WCP/2011/lindseyj_061611.pdf

UNA P. IRVIN v. ERNEST J. IRVIN, II

Court: TCA

Attorneys:

Donald N. Capparella, Nashville, Tennessee, for the appellant, Ernest J. Irvin, II.

Lawrence J. Kamm and Stacey A. Turner, Nashville, Tennessee, for the appellee, Una P. Irvin.

Judge: STAFFORD

This is a divorce case in which Husband/Appellant appeals the trial court's order. After a thorough review of the record, we conclude that the trial court's order is not final because it fails to address Husband's request concerning the sale of the marital residence. The order is also deficient in that it: (1) is ambiguous and fails to resolve certain conflicts between a mediation agreement and a stipulation entered by the parties; (2) fails to make the mandatory findings as required by Tennessee Rule of Civil Procedure 52.01, and specifically fails to properly value the marital property. We dismiss the appeal and remand for entry of a final judgment, which resolves the ambiguities and is otherwise compliant with Tennessee Rule of Civil Procedure 52.01.

http://www.tba2.org/tba_files/TCA/2011/irvinu_061611.pdf

IN RE JOSHUA S.
BRYAN L. AND ROBIN L. v. JENNIFER N.C. AND JOSHUA M. S.

Court: TCA

Attorneys:

Laura S. Hash, Law Office of Laura S. Hash, Clinton, Tennessee, for Petitioner/Appellees Bryan L. and Robin L.

Brian J. Hunt, Clinton, Tennessee, for Respondent/Appellant, Jennifer N.C.

David K. Vander Sluis, Oak Ridge, Tennessee, for Respondent/Appellant, Joshua M.S.

Amy Brown, Knoxville, Tennessee, Guardian Ad Litem.

Judge: KIRBY

This appeal involves the termination of parental rights. The State removed the child at issue from the custody of the parents due to neglect, parental absence, and underlying substance abuse. The child was ultimately placed with the petitioner foster parents. Subsequently, the biological parents moved out of Tennessee. The foster parents later filed a petition to terminate the parental rights of the biological mother and father, as a predicate to adoption. The trial judge terminated the parental rights of the biological parents on the grounds of persistent conditions and abandonment by failure to provide a suitable home, failure to visit, and failure to support.The mother and father appeal. We reverse on the grounds of persistent conditions, abandonment by failure to pay support, and abandonment by failure to provide a suitable home. However, we affirm on the ground of abandonment by failure to visit and affirm the termination of parental rights.

http://www.tba2.org/tba_files/TCA/2011/joshuas_061611.pdf

CHARLES MACKLIN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Charles Macklin.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Petitioner, Charles Macklin, appeals as of right from the Shelby County Criminal Court's denial of his petition for post-conviction relief. The Petitioner pled guilty to especially aggravated robbery and attempted first degree murder and received a sentence of 18 years to be served at 100 percent for the robbery conviction and a concurrent sentence of 18 years to be served at 30 percent for the murder conviction. The Petitioner challenges the voluntariness of his guilty plea and the performance of trial counsel. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/macklinc_061611.pdf

TODAY'S NEWS

Legal News
General Assembly News
U.S. Supreme Court
Politics
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Upcoming
TBA Member Services

Legal News

Haslam signs tort bill into law

Tennessee Gov. Bill Haslam today signed the Tennessee Civil Justice Act into law at a ceremony with legislators in the Old Supreme Court Chamber.

The Nashville City Paper reports

Intimidation of interracial couple not a 'hate crime'

A cinderblock with a threatening note was thrown through the window of a Polk County interracial couple's home earlier this week. The note specifically targeted the man, an African American, and threatened death if he did not leave town. The local sheriff's department is categorizing the crime as an act of vandalism and not racially based.

Learn why in the Times Free Press

MALS offers new pro bono opportunity

Memphis Area Legal Services (MALS) is now offering volunteer lawyers the opportunity to serve as back-up counsel during Attorney for the Day or Saturday Legal Clinic programs. As such, the lawyer would agree to be available by telephone to consult with an onsite volunteer. The Attorney for the Day program takes place every Thursday from 1:30-4 p.m., while the Saturday Legal Clinic is held the second Saturday of the month from 9:30 a.m. to noon. For more information or to volunteer, contact Linda Warren Seely at lseely@malsi.org or (901) 523-8822.

General Assembly News

Republican lawmakers begin redistricting process

A committee of Tennessee Republican lawmakers were scheduled to meet today to begin the process of redrawing the state's political districts. In an interview with Nashville Public Radio, Gerald McCormick, R-Chattanooga -- who is serving as vice chair of the ad hoc committee writing the plan -- said he believes Middle Tennessee will gain seats overall, while East and West Tennessee will lose representation.

Learn more from WPLN

U.S. Supreme Court

Court reaffirms arbitration stance

The U.S. Supreme Court has vacated a federal appeals court decision that allowed a Manhattan solo practitioner to avoid arbitration in a lawsuit against his student loan company. He had accused the company of charging hidden penalties. Citing its April decision in AT&T Mobility v. Concepcion, the court reaffirmed that the Federal Arbitration Act pre-empts state law.

The ABA Journal has the story

Court says age must be considered in interrogations

A divided Supreme Court said today that police and courts must consider age when determining whether a child is in custody -- a move the court's liberals called "commonsense" but conservatives called an "extreme makeover" of Miranda rights. The 5-4 decision came in a case where police got a confession from a seventh-grade special education student while questioning him at school about local break-ins.

Learn more from WRCB-TV Chattanooga

Court: Judges can't give extra time to get rehab

The U.S. Supreme Court ruled unanimously today that judges cannot give convicts extra time in prison in hopes it will get them into rehabilitation programs. The decision came in the case of Alejandra Tapia, who was trying to reduce her sentence for alien smuggling, gun possession and bail jumping. She wanted a three-year sentence, but the judge said that a longer sentence would increase her chances of getting into a 500-hour prison drug rehab program.