TBA YLD offers CLE program for new lawyers

"The New Lawyer Experience: Bridging the Gap Between Preparation and Practice" gives new lawyers the tools needed to succeed in the practice of law. The day-long course offers an introduction to a range of practice areas and practice tips, features a panel of seasoned associates, and includes a lunch and keynote address by a distinguished local attorney. In the afternoon, participants select a litigation or transactional breakout session to dig deeper on issues in their areas of practice. The CLE concludes with a networking mixer. If you are new to the practice of law in Tennessee, you need to be here! Register for the seminar, which will be offered in Knoxville, Memphis and Nashville
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.

DOROTHY OWENS, as Conservator of MARY FRANCIS KING, an Incapacitated Person v. NATIONAL HEALTH CORPORATION ET AL.
Corrected Opinion (replaces opinion filed on November 8, 2007)


Court: TSC

Attorneys:

Richard E. Circeo, Deborah Truby Riordan, and Carey L. Acerra, Nashville, Tennessee, and Brian G. Brooks, Greenbrier, Arkansas, for the appellant, Dorothy Owens, as Conservator of Mary Francis King.

John B. Curtis, Jr. and Bruce D. Gill, Chattanooga, Tennessee, for the appellees, National Health Corporation d/b/a NHC Healthcare, Murfreesboro; National Healthcorp, L.P.; National Health Realty, Inc.; NHC, Inc. a/k/a NHC, Inc.-Tennessee; and NHC/OP, L.P.

F. Laurens Brock, Jacob C. Parker, and T. Ryan Malone, Chattanooga, Tennessee, and Christopher C. Puri, Nashville, Tennessee, for the amicus curiae, Tennessee Health Care Association.

Judge: HOLDER

In this appeal, the primary issue is whether a durable power of attorney for health care authorized the attorney-in-fact to enter into an arbitration agreement as part of a contract admitting the principal to a nursing home and thereby to waive the principal's right to trial by jury. The case also presents secondary issues relating to the arbitration agreement, including whether this case is governed by the Tennessee Uniform Arbitration Act or the Federal Arbitration Act. We hold that the arbitration agreement is to be interpreted pursuant to the Tennessee Uniform Arbitration Act and that the power of attorney authorized the attorney-in-fact to enter into the arbitration agreement on behalf of the principal. In addition, we reject the plaintiff's arguments that: 1) the arbitration agreement is unenforceable because a material term of the agreement is incapable of performance; 2) the arbitration agreement violates federal law; and 3) pre-dispute arbitration agreements in nursing-home contracts violate public policy. However, we remand the case to the trial court for further proceedings on the question of whether the arbitration agreement is an unconscionable, and thus unenforceable, contract of adhesion.

http://www.tba2.org/tba_files/TSC/2008/owensd_corr_020708.pdf


R.D.S. v. STATE OF TENNESSEE
Dissenting opinion only corrected


Court: TSC

http://www.tba2.org/tba_files/TSC/2008/rds_020608.pdf

HOLDER dissenting and concurring
http://www.tba2.org/tba_files/TSC/2008/rds_Diss_Corr_020708.pdf


STATE OF TENNESSEE v. AYATOLAH W. WALLACE

Court: TCCA

Attorneys:

Richard Hughes, District Public Defender; John P. Fortuno, Assistant Public Defender (on appeal); Sean Williams and Wayne Carter, Assistant Public Defenders (at trial), for the appellant, Ayatolah W. Wallace.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and Dorothy Atwell and Wylie Richardson, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Ayatolah W. Wallace, was convicted of three counts of aggravated kidnapping and sentenced to sixteen years in the Department of Correction as a Range II, violent offender. He argues that his convictions must be overturned in light of State v. Anthony, 817 S.W.2d 299, 301 (Tenn. 1991), which precludes dual convictions for kidnapping and another accompanying felony when the movement or confinement supporting the kidnapping charge is merely incidental to that required to commit the accompanying felony. Because the defendant was convicted only of aggravated kidnapping, however, Anthony is inapposite. We affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/wallacea_020708.pdf


STATE OF TENNESSEE v. GENENOE WYKLE

Court: TCCA

Attorneys:

Mark E. Stephens, District Public Defender, and Jessica Greene, Assistant Public Defender, Knoxville, Tennessee, for the Appellant, Genenoe Wykle.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Steve Sword, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: HAYES

The Appellant, Genenoe Wykle, appeals the Knox County Criminal Court's denial of his request for judicial diversion. Wykle pled guilty to two counts of sale of a Schedule II controlled substance, Class C felonies, and one count of evading arrest, a Class A misdemeanor. Under the terms of the plea agreement, Wykle received consecutive three-year sentences for each felony conviction, which were to be served concurrently with the eleven month and twenty-nine day sentence imposed for the misdemeanor, resulting in an effective sentence of six years. The agreement also specified that Wykle be allowed to seek judicial diversion. At a scheduled court appearance, the trial court denied Wykle's request for diversion, instead ordering him to serve his sentence under the supervision of the Community Alternative to Prison Program ("CAPP"). On appeal, Wykle argues that the trial court erred in failing to consider the required factors in determining whether to grant or deny diversion. After review, we agree that the requisite factors were not considered. Indeed, our review of the record reflects that no sentencing hearing was ever conducted by the trial court prior to its summary pronouncement that the Appellant's request for diversion was being denied. As such, we are unable to conduct a de novo review of the trial court's denial of diversion, and, accordingly, we reverse and remand the case to the Knox County Criminal Court for a sentencing hearing and for written findings of fact and imposition of sentences in accordance with statutory law.

http://www.tba2.org/tba_files/TCCA/2008/wykleg_020708.pdf


The Right to Keep and Bear Arms under Article I, Section 26 of the Tennessee Constitution

TN Attorney General Opinions

Date: 2008-02-07

Opinion Number: 08-19

http://www.tba2.org/tba_files/AG/2008/ag_08_19.pdf

Distribution of Fees Collected for Victims of Crimes

TN Attorney General Opinions

Date: 2008-02-07

Opinion Number: 08-20

http://www.tba2.org/tba_files/AG/2008/ag_08_20.pdf

TODAY'S NEWS

Legal News
Legislative News
TBA Member Services

Legal News
BPR appeals censure of Hooker
The Board of Professional Responsibility has petitioned Davidson County Chancery Court to review a disciplinary panel's decision to censure John Jay Hooker. The BPR, which had recommended a suspension of Hooker's law license, called the panel's decision "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Hooker also has appealed, saying the censure is unnecessary.
Read more in the Nashville Post (subscription required)
Volunteer to provide disaster legal assistance
The TBA is recruiting lawyers to help storm victims with legal issues arising from this week's tornadoes. The volunteer registration web page announced in yesterday's edition of TBA Today was experiencing technical difficulties last night and this morning. Those issues have been resolved and the registration form is up and running.
Volunteer here
New applicant files for court vacancies
Jefre S. Goldtrap, a solo practioner in Nashville, has applied for both the circuit and chancery court vacancies in the 20th Judicial District. He is the first applicant for the circuit court seat left open by the retirement of Judge Walter C. Kurtz. He joins Julie M. Burnstein and Matthew Sweeney, both of Nashville, in applying for the chancery court vacancy. The Administrative Office of the Courts announced the news.

Nations drops request for third judge
Williamson County General Sessions Judge Al Nations has withdrawn a request that the county create a new judgeship after commissioners expressed concern about cost and immediacy of the need. Nations, one of two general sessions judges, had argued a third judge was needed to handle a growing caseload of juvenile, criminal, traffic and civil cases.
The Tennessean reports
ABA meeting in full swing
The American Bar Association Midyear Meeting in Los Angeles runs through next Tuesday and features a variety of programs on hot-button issues. Two seminars address the sub prime mortgage crisis, while others look at recent U.S. Supreme Court decisions, the Jena 6 case and the often-negative portrayal of lawyers on TV. This latter session features screenwriters and legal consultants for Boston Legal and Law & Order. Finally, participants will hear from Pepperdine Law School Dean Kenneth Starr on the Supreme Court's Bong Hits for Jesus decision.
Read more from the ABA Journal
County campaigns for child support function
Shelby County's legislators have asked the state Department of Human Services (DHS) to delay a plan to open child support collection and enforcement operations to private bids. The move contemplated by the state would end the current contract with the Shelby County Juvenile Court. DHS alleges the court is not effective in tracking deadbeat parents. Court supporters argue it needs time for a newly expanded child support division to improve its performance.
Read more in the Commercial Appeal
Washington County bar names officers
The Washington County Bar Association has elected officers for 2008. They are: President David Harvey, Vice President Suzanne Cook, Secretary Bryan Martin and Treasurer Cheryl Stewart, all of Johnson City.

One man's tale of self-representation
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Newschannel 6 tells his story
Legislative News
Workers' comp moves to state legislature
Recent court victories for employees seeking workers' compensation benefits have led companies to seek legislative relief. In an editorial, The Fairview Observer says it's a battle that could grow intense, pitting businesses and insurance companies against labor groups over new workplace trends.
Read about recent developments
Mukasey urges legislative action on cocaine decision
U.S. Attorney General Michael Mukasey, in testimony before Congress today, called on legislators to act quickly to prevent thousands of federal inmates from being released under new crack cocaine sentencing rules. Mukasey indicated a willingness to support guidelines that reduce prison time for crack convicts, but said relief should be limited to first-time, nonviolent offenders. The new rules are scheduled to take effect March 1.
The Commercial Appeal has more
TBA Member Services
Free online legal research is hot TBA benefit
Online legal research is available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Log in now to try it out

 
 
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