THE ANNUAL ETHICS ROADSHOW:
Just Sign Here . . . Conflict Waivers and Engagement Letters Under
Tennessee's New Rules

Dec. 8 - Memphis
Dec. 9 - Nashville
Dec. 16 - Knoxville
Dec. 17 - Chattanooga

With the advent of the new Tennessee Rules of Professional Conduct,
Tennessee lawyers now are required to follow their own advice when it
comes to having clients waive conflicts of interest. But who really
understands how to do this in a way that effectively communicates
what's important to the client, protects the lawyer from exposure down
the road, and complies with the ethics rule itself in the here and
now? This three-hour seminar will explore all these topics in an
interactive format, using sample letters, discussion of the ethics
rules and cases, and audience discussion.

Today's Opinions: November 1, 2004
Volume 10 — Number 210
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
07 New Opinion(s) from the Tennessee Court of Appeals
06 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi .

Here's how you can obtain full-text version. • Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. • 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. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1101.wpd

IN RE ESTATE OF JAMES A. CHAMPION, DECEASED; JAMES W. SMITH and ALEX
SMITH, Children of James A. Champion, and on behalf of MARY ALICE
EPPERSON, LINDA ANN WERSEL, WAYNE SMITH, TYRONE SMITH, DARRYL
CHAMPION, and MARK CHAMPION v. CARRIE BROYLES, as Executrix of the
Estate of James A. Champion, Deceased

Court:TCA

Attorneys:                          

Mark L. Agee and Jason C. Scott, Trenton, Tennessee, for the
appellants, James W. Smith and Alex Smith.

Harold E. Dorsey, Humboldt, Tennessee, for the appellee, Carrie
Broyles.

Judge: KIRBY

First Paragraph:

This appeal challenges the chancery court's subject matter
jurisdiction to hear a will contest.  The petitioner daughter filed a
petition to probate the last will and testament of her father.  Other
siblings filed an objection to probate, alleging that their father did
not have the requisite testamentary capacity to execute the will. 
After a hearing, the chancery court rejected the siblings' claims and
admitted the will to probate.  Later, the siblings filed another
petition contesting the will, again challenging testamentary capacity
and, in addition, alleging undue influence.  The chancery court
certified the will contest to the circuit court.  The circuit court
granted summary judgment to the petitioner, finding that the issues
raised by the siblings had been addressed in the former proceedings
and were res judicata.  The siblings then filed a Rule 60 motion in
chancery court to set aside the order probating the will.  The motion
was denied.  The siblings now appeal, arguing that the chancery court
did not have subject matter jurisdiction to hear the will contest.  We
affirm, finding that the chancery court had concurrent jurisdiction
with the circuit court to adjudicate a will contest.

http://www.tba.org/tba_files/TCA/championjamesa.wpd

MIRA ANN (WALLER) MOSLEY v. CHARLES RAYMOND MOSLEY
WITH CONCURRING OPINION

Court:TCA

Attorneys:                          

Brad W. Hornsby, Aaron S. Guin, Murfreesboro, Tennessee, for the
appellant, Mira Ann (Waller) Mosley.

Roger W. Hudson, Murfreesboro, Tennessee, for the appellee, Charles
Raymond Mosley.

Judge: CAIN

First Paragraph:

The parties were married in 1980 with no children born of the
marriage.  The parties separated a number of times during their
marriage.  During a period of separation, in April of 1995, the
parties signed a contract entitled Marital Dissolution Agreement,
which, among other things, settled their rights in property acquired
during their marriage.  They reconciled in 1997 and lived together for
some six months until their final separation, which was followed by
Wife's Complaint for Divorce filed June 11, 2001.  The trial court
held that the Agreement had been freely executed by both parties and
meticulously followed until the time of the divorce Complaint.  The
parties were divorced by joint stipulation pursuant to Tennessee Code
Annotated section 36-4-129, and following final hearing, the trial
court held the 1995 Agreement to be fair and equitable and divided
property accordingly.  Wife appeals, and we affirm the judgment of the
trial court.

http://www.tba.org/tba_files/TCA/mosleymiraa_opn.wpd

CONCURRING OPINION
http://www.tba.org/tba_files/TCA/mosleymiraa_con.wpd

CLARENCE MUMFORD v. BOARD OF EDUCATION OF THE CITY OF MEMPHIS.

Court:TCA

Attorneys:                          

Leonard E. Van Eaton of Memphis, For Appellant, Clarence Mumford

Ernest G. Kelly of Memphis, For Appellee, Board of Education of the
City of Memphis

Judge: CRAWFORD

First Paragraph:

Board of Education of the City of Memphis suspended tenured teacher
and assistant principal without pay pending an investigation of child
abuse by the Department of Children's Services.  After teacher was
reinstated, he sought to recover lost wages under T.C.A. S49-5-511. 
Trial court found that teacher was entitled to recover but that such
recovery should be offset by wages earned during the period of
suspension.  We affirm as modified herein.

http://www.tba.org/tba_files/TCA/mumfordclar.wpd

ROY HUGH RUSHING, II v. JILL MARIANNE RUSHING

Court:TCA

Attorneys:                          

Mary Jo Middlebrooks and Betty Stafford Scott, Jackson, Tennessee, for
the appellant, Jill Marianne Rushing.

Lisa A. Houston, Jackson, Tennessee, for the appellee, Roy Hugh
Rushing.

Judge: KIRBY

First Paragraph:

This is a post-divorce child custody case.  The parties were divorced
by a final decree which incorporated the parties' marital dissolution
agreement ("MDA").  The MDA provided, among other things, that the
parties would have joint custody of their two minor children, and that
the mother would be the primary residential parent.  The MDA also
stated that the father would provide life insurance on the children's
lives, and that the maternal grandmother would arbitrate the parties'
disputes.  Approximately two years later, the mother filed a motion
for contempt, claiming that the father had failed to provide the
required life insurance on the children's lives.  In response, the
father filed a motion to increase his residential time with the
children and also sought court approval to provide term-life insurance
as opposed to whole-life insurance on the children's lives.  In
addition, the father asked the court to strike the MDA provision
stating that the maternal grandmother would be the final arbiter of
the parties' child rearing disputes.  The trial court denied the
mother's motion for contempt and granted the father's motion for
modification of the MDA.  The mother now appeals.  We affirm.

http://www.tba.org/tba_files/TCA/rushingroyh.wpd

SEILLER & HANDMAKER, L.L.P.  and GLEN COHEN v. KELLY FINNELL

Court:TCA

Attorneys:                          

Mark Vorder Bruegge, Jr. and Scott B. Ostrow, Memphis, Tennessee, for
the appellant, Kelly Finnell.

Wendell L. Jones, Louisville, Kentucky, for the appellees, Seiller &
Handmaker, L.L.P. and Glen Cohen.

Judge: KIRBY

First Paragraph:

This is an action to enroll a foreign judgment.  A Tennessee resident
was represented by a Kentucky lawyer in a Kentucky lawsuit.  When the
Kentucky lawyer pursued collection of his fees, the Tennessee client
filed a bar complaint against him in Kentucky.  The bar complaint was
dismissed, and the Kentucky lawyer filed a malicious prosecution
lawsuit in Kentucky against the client, and obtained a judgment.  In
this action, the Kentucky lawyer seeks to enroll the Kentucky judgment
against the Tennessee client.  The client asserts that the judgment
should not be enrolled in Tennessee because it falls under the public
policy exception to the full faith and credit clause of United States
Constitution. The client bases this argument on Tennessee Supreme
Court Rule 9, section 27.1, which prohibits any lawsuit based on a bar
complaint, asserting that the enrollment of a foreign judgment based
on this cause of action would violate Tennessee public policy.  The
trial court held that the Kentucky judgment was entitled to full faith
and credit and domesticated the judgment.  We affirm the decision of
the trial court, finding that the enrollment of the foreign judgment
does not violate Tennessee public policy.

http://www.tba.org/tba_files/TCA/seillerhand.wpd

JEAN ANN TRUDEAU, ET AL. V. DEPT. OF LABOR AND WORKFORCE DEVELOPMENT
FOR THE STATE OF TENNESSEE, ET AL.

Court:TCA

Attorneys:                          

James L. Harris, Nashville, for the appellant Jean Ann Trudeau

Paul G. Summers and Brandy M. Gagliano, Nashville, for the appellee
the Dept. Of Workforce Development for the State of Tennessee

Judge: KIRBY

First Paragraph:

This is an age discrimination case.  In October 2001, a thirty-seven
year old woman interviewed for a job position at the defendant's
Career Center.  She was recommended for hire for the job. 
Subsequently, the defendant Career Center began accepting applications
for a second job position, similar to the first.  The forty-five year
old aunt of the first applicant submitted an application for the
second job position.  The second job position was never filled.  The
forty-five year old job applicant filed a lawsuit, alleging that she
was not hired due to age discrimination.  The trial court granted
summary judgment in favor of the Career Center.  We affirm, finding
that the forty-five year old applicant failed to establish a prima
facie case of age discrimination.

http://www.tba.org/tba_files/TCA/trudeaujeana.wpd

VACCARO CONSTRUCTION CO., INC. v. LOUIS L. SCHAFER AND C. MARIE
SCHAFER

Court:TCA

Attorneys:                          

James Stephen King, Memphis, Tennessee, for the Appellant, Vaccaro
Construction Co., Inc.

Shea Sisk Wellford, Memphis, Tennessee, for the Appellees, Louis L.
Schafer and C. Marie Schafer.

Judge: KIRBY

First Paragraph:

This is a construction case.  The defendant homeowners had an oral
contract with the plaintiff contractor to perform renovations on their
home.  After problems with the renovations arose, including flooding
of the home after a rainstorm, the homeowners terminated the
contractor.  The contractor filed a claim seeking enforcement of a
lien on the improved property or payment for the work done on theories
of breach of contract, quantum meruit, and unjust enrichment.  The
homeowners counter-claimed that the contractor owed them for the cost
of repairing the contractor's defective work.  After a bench trial,
the trial court found that the contractor's work fell well below the
applicable standard and awarded the homeowners damages for the repair
of the contractor's defective work.  We affirm.

http://www.tba.org/tba_files/TCA/vaccaroconst.wpd

DARRELL BRADDOCK v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Darrell Braddock, pro se.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant
Attorney General, for the appellee, the State of Tennessee.

Judge: GLENN

First Paragraph:

The Petitioner, Darrell Braddock, appeals the trial court's denial of
his petition for post- conviction relief.  The State has filed a
motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. 
Because the petition for post-conviction relief is time-barred by the
statute of limitations, we grant the State's motion and affirm the
judgment of the lower court.

http://www.tba.org/tba_files/TCCA/braddocdarrell.wpd

STATE OF TENNESSEE v. ROBERT L. EVANS, JR.

Court:TCCA

Attorneys:                          

Coleman W. Garrett and James Turner, Memphis, Tennessee, for the
appellant, Robert L. Evans, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General;  William L. Gibbons, District Attorney
General; and Jerry Kitchen and Michelle Kimbril-Parks, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Robert L. Evans, Jr., was indicted for aggravated
robbery, first degree premeditated murder, and first degree felony
murder.  A jury convicted the defendant on all counts.  The two murder
convictions were merged, and the jury imposed life without parole. 
The trial judge sentenced the defendant to life without parole plus
twelve years for aggravated robbery.  The twelve- year sentence was
ordered served consecutively to the murder sentence and a previous
sentence of death in Illinois.  The defendant now appeals his
convictions and the consecutive sentencing.  We affirm both the
convictions and sentencing.

http://www.tba.org/tba_files/TCCA/evansrobertl.wpd

ARZOLIA CHARLES GOINES v. GLEN TURNER, WARDEN

Court:TCCA

Attorneys:                          

Arzolia Charles Goines, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General, and Randall E. Nichols, District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner, Arzolia Charles Goines, appeals the dismissal of his
petition for writ of habeas corpus, in which he contends that:  (1)
the judge's handwritten signature was not subscribed on the judgments;
 (2) the judge ordered the present sentence to run concurrently with a
previous unserved sentence in contravention of Tennessee Rule of
Criminal Procedure 32(c); (3) in sentencing the petitioner, the court
failed to consider a presentence report; and (4) the trial court erred
in summarily dismissing his petition without appointment of counsel. 
After careful review, we affirm the dismissal of the petition.

http://www.tba.org/tba_files/TCCA/goinesarzoliac.wpd

DONALD MAYS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles W. Gilchrist, Jr., for the appellant, Donald Mays.

Paul Summers, Attorney General & Reporter; Elizabeth B. Marney,
Assistant Attorney General; and Stacy McEndree, Assistant District
Attorney General for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The petitioner, Donald Mays, appeals the trial court's denial of
post-conviction relief.  Although the petitioner bases his claim on
three grounds, the primary issue is whether the petitioner was denied
the effective assistance of counsel at trial and on appeal.  The
judgment is affirmed.  Because the post-conviction court failed to
address the issue of whether counsel were ineffective by failing to
challenge the trial court's failure to charge the jury on certain
lesser included offenses, the cause is remanded for further
proceedings.

http://www.tba.org/tba_files/TCCA/maysdonald.wpd

STATE OF TENNESSEE v. TORY NELSON NOCHO

Court:TCCA

Attorneys:                          

Ardena J. Garth, District Public Defender; and Donna Robinson Miller,
Christian Coder, and Myrlene Marsa, Assistant Public Defenders, for
the appellant, Tory Nelson Nocho.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  William H. Cox, III, District Attorney
General; and Barry A. Steelman and Christopher D. Poole, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant, Tory Nelson Nocho, appeals his sentence of life without
possibility of parole.  The defendant contends that the failure to set
forth aggravating circumstances within the indictment is a
constitutional infirmity.  The defendant secondly asserts error in
that the State had not filed statutory notice of intent to seek life
without possibility of parole as to one victim prior to the entry of
the guilty plea.  We affirm the sentence as imposed, but we remand the
case for entry of corrected judgments.

http://www.tba.org/tba_files/TCCA/nochotoryn.wpd

KERMIT PENLEY v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

David L. Leonard, Greeneville, Tennessee, for the appellant, Kermit
Penley.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant,
Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney
General; and Eric D. Christiansen and Cecil C. Mills, Jr., Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner, Kermit Penley, appeals from a denial of
post-conviction relief.  On appeal, the petitioner alleges ineffective
assistance of counsel, and that his plea of guilty was not knowing or
voluntary.  We affirm the post-conviction court's denial of relief.

http://www.tba.org/tba_files/TCCA/penleykermit.wpd

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