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 24, 2004
Volume 10 — Number 227
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.
02 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
02 New Opinion(s) from the Tennessee Court of Appeals
03 New Opinion(s) from the Tennessee Court of Criminal Appeals
01 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

EASTMAN CHEMICAL COMPANY  v.  RUTH E. JOHNSON, COMMISSIONER OF
REVENUE, STATE OF TENNESSEE

Court:TSC

Attorneys:

Brett R. Carter, Charles A. Trost and Michael G. Stewart, Nashville,
Tennessee, for the appellant, Eastman Chemical Company.

Paul G. Summers, Attorney General and Reporter; Joseph F. Whalen,
Associate Solicitor General; and Charles L. Lewis, Deputy Attorney
General, for the appellee, Ruth E. Johnson, Commissioner of Revenue,
State of Tennessee.

Jay Stapp, Nashville, Tennessee, for the Amicus Curiae,
Bridgestone/Firestone North American Tire, LLC.
                         
Judge: BARKER

First Paragraph:

The sole issue in this case is whether certain chemical catalysts used
by Eastman Chemical Company fall within the industrial machinery
exemption to the Tennessee sales and use tax statute, Tennessee Code
Annotated sections 67-6-101 et seq. (2003).  The trial court granted
summary judgment in favor of the taxpayer.  The Court of Appeals
reversed, dismissing the taxpayer's complaint seeking refunds for
1995, 1996 and 1997 based on the Court of Appeals' determination that
the chemical catalysts used by the taxpayer did not come within the
definition of "industrial machinery" in Tennessee Code Annotated
section 67-6-102(13)(A) (1998).  We reverse the Court of Appeals and
reinstate the decision of the trial court granting summary judgment in
favor of the taxpayer.

http://www.tba.org/tba_files/TSC/eastmanchemical.wpd

STATE OF TENNESSEE v. RICKY THOMPSON

Court:TSC

Attorneys:                          

Charles Corn, Athens, Tennessee, and Brock Mehler, Nashville,
Tennessee, for the appellant, Ricky Thompson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and William W. Reedy and
Amy Reedy, Assistant District Attorneys General, for the appellee,
State of Tennessee.

Judge: BARKER

First Paragraph:

The defendant was convicted by a jury for the 1989 first-degree
premeditated murder of his wife, the aggravated assault of his wife's
niece, and the arson of his home.   Following a bifurcated sentencing
hearing, the jury sentenced the defendant to death.   After a hearing
on the defendant's Motion for New Trial, the trial court found that
the State had failed to prove the defendant's sanity beyond a
reasonable doubt and modified the jury's verdict to "not guilty by
reason of insanity."  On appeal by the State, the Court of Criminal
Appeals reversed, finding that under the standard of review of
Tennessee Rule of Criminal Procedure 29,  the evidence was sufficient
to support the jury's verdicts of guilt.  The court reinstated the
jury's verdicts and remanded the case to the trial court for
consideration of the remaining issues in the defendant's Motion for
New Trial and for sentencing on the aggravated assault and arson
convictions.  The defendant filed an application for permission to
appeal pursuant to Tennessee Rule of Appellate Procedure 11, seeking
review in this Court.  We granted the application to determine (1)
whether the evidence at trial was sufficient to support the jury's
verdict, including its determination that the defendant was sane at
the time of these offenses, and (2) whether the provision of Tennessee
Code Annotated section 39-11-501(c)(effective as of July 1, 1995),
which prohibits experts from testifying on the ultimate issue of
whether a defendant is legally insane, applied in this trial for
offenses committed in 1989.  After due consideration of the relevant
authority, we conclude that the evidence was sufficient to support the
jury's verdict of guilt and that the prohibition of expert testimony
on the ultimate issue of sanity was a substantive change to the law
that should not apply in this case.  Accordingly, the judgment of the
Court of Criminal Appeals is affirmed, and the case is remanded to the
trial court for further consideration of the Motion for New Trial and
for sentencing in the aggravated assault and arson convictions.

http://www.tba.org/tba_files/TSC/thompsonricky.wpd

BECKY BRIDGES v. MICKEY BRIDGES

Court:TCA

Attorneys:                          

Charles David Buckholts, Oak Ridge, Tennessee, for Appellant, Becky
Bridges.

April Carroll Meldrum and Sal W. Varsalona, Clinton, Tennessee, for
the Appellee, Mickey Bridges.

Judge: LEE

First Paragraph:

This case presents the issue of whether a qualified domestic relations
order which awarded the husband's navy retirement benefits one-half to
the husband and one-half to the wife can be altered more than one year
later to specify the equal division of the cost of living allowance. 
We hold that the trial court's order allowing the cost of living
allowance to be divided equally between the husband and wife was a
proper clarification of its previous order, and not a modification of
the original order.

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

IN RE: ESTATE OF AGIE BUNDREN

Court:TCA

Attorneys:                          

David H. Stanifer, Tazewell, Tennessee, for Appellant Jerry Bundren.

David L. Bacon, Knoxville, Tennessee, for Appellees William Albert
Bundren, Helen Johnson, Leonard Bundren, Thelma Bundren, Larry
Bundren, and David Bundren.

Judge: LEE

First Paragraph:

The two primary issues in this case are: whether deeds that are
executed by a father to his various children, but retained by his wife
in a lockbox in his home and not delivered to his children until after
his death, are invalid due to lack of delivery; and whether deeds
executed by a father to his son are invalid due to the son's alleged
undue influence over the father where the father and son had a close
personal and business relationship, but where the father retained his
independence despite his deteriorating physical health.  Agie Bundren
executed twelve deeds  conveying tracts of his real property to his
children- ten of the deeds were retained in a lockbox in Agie
Bundren's  home and two were delivered to a son with whom Agie Bundren
had a close business and personal relationship.  We hold that the
deeds retained in the lockbox and not delivered to Agie Bundren's
children until after his death are ineffective gifts due to failure of
delivery and that the evidence preponderates against the trial court's
finding that the two deeds delivered prior to Agie Bundren's death
were procured by the son due to undue influence.  Accordingly, we
affirm the trial court's judgment as to deeds retained in the lockbox
and  reverse as to the deeds delivered to the son prior to Agie
Bundren's death.

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

STATE OF TENNESSEE v. ROGER DALE CATES

Court:TCCA

Attorneys:                          

John Pellegrin, Gallatin, Tennessee, for the appellant, Roger Dale
Cates

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and   Lytle Anthony James, Assistant
District Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Roger Dale Cates, was convicted of driving under the
influence, third offense.  The trial court imposed a sentence of
eleven months and twenty-nine days with one hundred twenty days to be
served in jail and the balance to be served on probation.  The
defendant's driver's license  was revoked for a period of three years.
Because the trial court properly instructed the jury as to whether the
defendant was in control of the vehicle, the judgment is affirmed.

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

CHARLES GODSBY, JR. v. RICKEY BELL, and the STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Charles Godsby, Jr., Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District
Attorney General; and Pamela S. Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The petitioner appeals the dismissal of his petition for writ of
habeas corpus, in which he contends that:  (1) the State cannot
maintain convictions on both murder and robbery when the murder was
committed in the act of robbery; (2) the court lacked jurisdiction to
sentence him because he did not plead to the charge of attempted
second degree murder; and (3) the court erred in dismissing his
petition without first appointing him counsel.  After careful review,
we affirm the dismissal of the petition.

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

STATE OF TENNESSEE v. MONTY EARL PICKLESIMER

Court:TCCA

Attorneys:                          

Fikisha Swader (at trial) and Jeffrey A. DeVasher (on appeal),
Assistant Public Defenders, for the appellant, Monty Earl Picklesimer

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner,
Assistant Attorney General; and   Pamela Anderson, Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: WADE

First Paragraph:

The defendant, Monty Earl Pickelsimer, entered negotiated pleas of
guilt to theft of property having a value of more than $10,000.00 or
more but less than $60,000.00 and theft of property having a value of
more than $1000.00 more but less than $10,000.00.  The plea agreement
included concurrent Range I sentences of three years on each offense
and certified a question of law for appeal as to whether the defendant
was denied a speedy trial under the state and federal constitutions. 
Because the defendant was denied his right to a speedy trial, the
judgment is reversed, the conviction is set aside, and the cause is
dismissed.

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

Solicitation of Charitable Funds Act / LILAC Registration

Date: November 23, 2004

Opinion Number: 04-168

http://www.tba.org/tba_files/AG/2004/op168.pdf

PLEASE FORWARD THIS E-MAIL!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!
But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi

TBALink HomeContact UsPageFinderWhat's NewHelp

© Copyright 2004 Tennessee Bar Association