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 be taught by either Lucian T. Pera
or Brian S. Faughnan, each of Armstrong Allen in Memphis. Lucian is
chair of the TBA Standing Committee on Ethics and Professional
Responsibility, and Brian practices law with Lucian in the area of
ethics and professional responsibility and is a frequent CLE speaker.

Today's Opinions: November 9, 2004
Volume 10 — Number 216
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
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
02 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

ALLSTATE INSURANCE COMPANY v. WESLEY SCOTT GRIMES, ET AL.

Court:TCA

Attorneys:                          

Timothy V. Potter, Dickson, Tennessee, for the appellants, Lawrence
Grimes and Janet Grimes.

Alan M. Sowell, Nashville, Tennessee, for the appellee, Allstate
Insurance Company.

Judge: CLEMENT

First Paragraph:

This declaratory judgment action was filed by Allstate Insurance
Company which seeks a ruling that its named insureds under a
homeowners' insurance policy had no coverage and that Allstate had no
duty to defend an action brought by a third party seeking damages
resulting from the intentional and criminal acts of their son who
resided in their home.  The insureds' adult son shot his girlfriend at
the home of his parents.  She filed a tort action against the son and
his parents alleging inter alia that the parents failed to render aid
after the shooting.  The policy excludes intentional and criminal acts
by an insured.  The son was an insured because he resided in the home
with his parents.  The policy also contains a "joint obligations
clause" that excludes coverage for injury which may reasonably be
expected to result from the intentional or criminal acts of any
insured.  Upon summary judgment the trial court held that the parents
were not covered and that Allstate had no duty to defend the parents
in the underlying tort action.  We reverse finding the claim that the
parents failed to render aid after the shooting constitutes a claim of
separate and independent acts of negligence by the parents to which
the exclusion and joint obligations clauses do not apply.

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

AMC-TENNESSEE, INC. v. HILLCREST HEALTHCARE, LLC 

Court:TCA

Attorneys:                          

Robert A. Anderson, Nashville, Tennessee, for the appellant, Hillcrest
Healthcare, LLC.

R. Dale Grimes, E. Steele Clayton, IV, and Gerald E. Martin,
Nashville, Tennessee, for the appellee, AMC-Tennessee, Inc.

Judge: CAIN

First Paragraph:

In this appeal arising from a breach of contract claim, the appellant,
Hillcrest Healthcare, LLC  challenges the trial court's award of
damages in the amount of $337,363.59 including $219,937 in lost
profits.  We affirm.

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

GREG DAVIDSON, ET AL. v. BANK OF FRIENDSHIP, INC. AND THEODA DUNN v.
BANK OF FRIENDSHIP, INC.

Court:TCA

Attorneys:                          

David A. Riddick, Jackson, Tennessee, for the appellant, Bank of
Friendship, Inc.

Carthel L. Smith, Lexington, Tennessee, for the appellees, Greg
Davidson and Kim Davidson.

Danny R. Ellis, Jackson, Tennessee, for the appellee, Theoda Dunn.

Judge: FARMER

First Paragraph:

The trial court awarded judgment to Plaintiffs upon determining that
the Bank of Friendship could not foreclose on Plaintiffs' properties
because the Bank had failed to apply proceeds from a sale under a deed
of trust to a senior deed of trust.  We reverse and remand for further
proceedings.

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

BRENT G. JOHNSON v. KIMBERLY S. JOHNSON

Court:TCA

Attorneys:                          

Johnny V. Dunaway, LaFollette, Tennessee, for the Appellant Kimberly
S. Johnson.

D. Vance Martin, Knoxville, Tennessee, for the Appellee Brent G.
Johnson

Judge: SWINEY

First Paragraph:

Brent G. Johnson ("Father") and Kimberly S. Johnson ("Mother") were
married with their only child, a daughter, being born in October of
2000.  The child was born with a rare metabolic disorder resulting in
developmental delays, among other things.  The parties separated
shortly after their daughter was born.  Mother then moved to West
Virginia with the parties' daughter.  Father filed for divorce and
Mother counterclaimed also seeking a divorce.  Both parties sought to
be designated as the primary residential parent of their young
daughter.  At a hearing to determine temporary custody, the parties
reached an agreement whereby Mother would return to Tennessee within
three months and Mother would be designated as the primary residential
parent pending the trial.  The Trial Court entered an order setting
forth this accord and establishing Father's visitation schedule
pending Mother's return.  Mother reneged on her agreement, refused to
return to Tennessee, and then set about to systematically and
intentionally prevent Father from having any meaningful co-parenting
time.  The Trial Court later entered a final judgment designating
Mother as the primary residential parent, but requiring Mother to
return with the child to Tennessee and to stop interfering with
Father's co-parenting time.  Mother appeals claiming the Trial Court
was without authority to order her to return to Tennessee.  The Trial
Court's order designating Mother as the primary residential parent is
affirmed if Mother voluntarily returns to Tennessee.  If Mother
chooses not to return, the Trial Court's judgment designating Mother
as the primary residential parent is vacated, and the Trial Court is
instructed to determine which parent then should be designated as the
primary residential parent consistent with the best interest of the
minor child, with the understanding that should primary residential
custody remain with Mother in West Virginia, Mother will continue to
do her best to prevent Father from having any meaningful relationship
with his daughter.

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

SODEXHO MANAGEMENT, INC., v. RUTH E. JOHNSON

Court:TCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; and Wyla M. Posey, Assistant Attorney General, for
the appellant, Ruth E. Johnson, Commissioner of Revenue, State of
Tennessee.

Patricia Head Moskal and Joseph W. Gibbs, Nashville, Tennessee, for
the appellee, Sodexho Management, Inc.

Judge: CLEMENT

First Paragraph:

This dispute arises from the assessment of the "contractor's use tax"
against Sodexho Management, Inc. for its use of personal property
owned and utilities provided by David Lipscomb University.  Sodexho
used the university's property to provide food service for the
tax-exempt university.  The Commissioner assessed a use tax on the
value of the personal property and utilities provided by the
university because the university, as an exempt organization, had not
previously paid sales tax.  The pivotal issue is whether Sodexho
operated the food service as an agent of the tax exempt university or
as an independent contractor.  The Chancellor held that Sodexho was an
agent of the university and that no use tax was owed.  We reverse,
finding that Sodexho did not carry its burden of proof to establish
that it was an agent of the university and thus is liable for the use
tax.

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

KENNETH STINNETT, ET AL v. DUDLEY D. JOHNSTON, ET AL.

Court:TCA

Attorneys:                          

Lynne Denell Swafford, Pikeville, Tennessee, for the Appellants,
Dudley D. Johnston and Robert E. Johnston.

J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellee, Kenneth
Stinnett and wife, Rebecca S. Stinnett.

Judge: LEE

First Paragraph:

This appeal involves an acreage deficiency in the conveyance of a
subdivision lot. Both parties to the transaction believed that the lot
contained 2.4 acres.  However, a survey after the sale determined that
the lot contained only .93 acres. The parties did not learn of the
acreage discrepancy until after the buyer had constructed a house
foundation which extended approximately 15 feet across the boundary
line onto a neighbor's property. The trial court determined that there
had been a mutual mistake as to the quantity of land conveyed and
ordered a  rescission of the transaction. The trial court awarded the
buyer damages in the amount of $17,275.60 representing a refund of the
purchase price, reimbursement for grading, labor, construction
materials, and closing costs for the house construction loan. The
seller appealed.  We affirm the trial court's decision to rescind  the
transaction based upon mutual mistake, but modify the award of damages

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

STATE OF TENNESSEE v. JERRY W. HAYES

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General;
William H. Cox III, District Attorney General; and David Denny,
Assistant District Attorney General, for the Appellant, State of
Tennessee.

Ardena J. Garth, District Public Defender; Steven D. Brown (at trial)
and Donna Robinson Miller (on appeal), Assistant District Public
Defenders, Chattanooga, Tennessee, for the Appellee, Jerry W. Hayes.

Judge: HAYES

First Paragraph:

The State appeals from an order of the Hamilton County Criminal Court
suppressing evidence from a motorist stop on public housing authority
property.  Following the stop at the street entrance into the public
housing development, the officer observed two quart containers of beer
in the vehicle driven by Defendant, Jerry W. Hayes.  A check of Hayes'
driver's license revealed that the license had been suspended.  Hayes
was indicted for driving on a suspended license and being a minor in
possession of alcohol.  The stated purpose of the housing authority's
checkpoint was to ensure the safety of its residents by excluding
trespassers and others without legitimate purposes seeking entry into
the housing development.  The trial court found the stop constituted
an unreasonable seizure and was thus unconstitutional.  Pursuant to
Rule 9 of the Tennessee Rules of Appellate Procedure, the State seeks
review of this ruling.  After review, we conclude that the stop was
reasonable; therefore, no Fourth Amendment violation resulted. 
Accordingly, we reverse the trial court's suppression of the evidence
and remand for further proceedings.

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

STATE OF TENNESSEE v. ISIAH WILSON

Court:TCCA

Attorneys:                          

S. Drake Martin, Brownsville, Tennessee, for the appellant, Isiah
Wilson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; and Garry G. Brown, District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS
 
First Paragraph:

Isiah Wilson, a juvenile defendant, after transfer to Circuit Court,
entered a guilty plea to aggravated rape and especially aggravated
kidnapping and received agreed upon concurrent sentences of fifteen
years.  The defendant properly reserved a certified question of law
challenging the appropriateness of the transfer ruling from juvenile
court to circuit court.  We conclude that the juvenile court judge
adhered to the mandated statutory considerations, affirm the transfer,
and, thus, also affirm the judgments of conviction.

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

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