TBA YLD Presents: Who's Your Client (And Other Ethical Dilemmas)
March 29 - Memphis
March 30 - Nashville
March 21 - Knoxville

This fast-paced, three-hour ethics CLE includes presentations on
conflicts of interest and other issues relating to the representation
of elderly clients and conflicts of interest and other issues relating
to the representation of both large corporations and small businesses,
including family-owned and other closely-held corporations and their
principals.
It will also include a one-hour segment dealing with ethics in
mediation, covering topics relating to both the mediator and the
parties in mediation. Finally, it will include a short segment on the
proposed changes to the disciplinary reporting requirements and the
fee dispute rules.

Today's Opinions: February 28, 2005
Volume 11 — Number 038
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
10 New Opinion(s) from the Tennessee Court of Appeals
08 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. We recommend you download the Opinions to your computer and then open them from there. • 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. • 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. ROBERT E. WATSON

Court:TCA

Attorneys:                          

Jamie D. Winkler, E.Todd Presnell, Nashville, Tennessee, for the
appellant, Robert E. Watson.

John R. Cheadle, Jr., Nashville, Tennessee, for the appellee, Allstate
Insurance Co.

Judge: CAIN

First Paragraph:

Allstate Insurance Company paid a fire loss to the landlord then
brought an action against the tenant asserting subrogation rights. 
The trial court held the tenant to be blameless as to the fire but
found him liable under the terms of the lease, which provided that the
tenant would be "responsible for all damages to the apartment,
intentional or non intentional".  Since we find the tenant to be an
additional insured under the Allstate policy, no subrogation rights
exist, and we reverse the trial court.

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

IN RE: A.R.G.

Court:TCA

Attorneys:                          

Thomas H. Miller, Franklin, Tennessee, for the appellant, C.J.S.

Elizabeth C. Driver, Nashville, Tennessee, for the appellee, State of
Tennessee Department of Children's Services.

Susie Piper McGowan, Nunnelly, Tennessee, guardian ad litem for A.R.G.

Judge: CAIN

First Paragraph:

The trial court terminated the parental rights of both parents of
A.R.G., DOB 12-26-2000.  Only Mother, C.S., appeals.  Grounds for
termination were substantial noncompliance with a permanency plan and
failure to remedy conditions in her life permitting the child's return
in the near future.  We affirm the action of the trial court.

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

CHRISTA A. AVENELL v. JAMES ALLEN GIBSON
WITH DISSENTING OPINION

Court:TCA

Attorneys:                          

Harold B. Stone and Mark E. Brown, Knoxville, Tennessee, for the
appellants, Christa A. Avenell and James S. Avenell.

Lance A. Evans, Maryville, Tennessee, for the appellee, James Allen
Gibson.

Judge: SUSANO

First Paragraph:

Christa A. Avenell,  sometimes referred to herein as "the plaintiff,"
brought this action against James Allen Gibson ("the creditor"),
seeking to recover funds taken out of the Avenells' two joint accounts
by their bank in response to a levy of execution.  The trial court
held that the 1988 amendment to Tenn. Code Ann. S 45-2-703 (2000)
changed the law with respect to bank accounts held by individuals as
tenants by the entirety; that Mrs. Avenell failed to prove she was
entitled to the levied-upon funds; and that the creditor was entitled
to retain the funds paid into court by the Avenells' bank.  The
plaintiff and her husband appeal.  We reverse.

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

DISSENTING OPINION
http://www.tba.org/tba_files/TCA/avenellchristaa_dis.wpd

IN RE: B.L.R. (D/O/B 7/18/98) AND J.F.R. (D/O/B 7/18/98) 

Court:TCA

Attorneys:                          

Randal R. Boston, Crossville, Tennessee, for the appellant, J.R.R.

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellees,
K.A.H., R.M.H. and W.M.

Judge: CAIN

First Paragraph:

This is a termination of parental rights case wherein J.R.R., who is
neither the biological father of the twins nor the husband of the
mother of the twins, resists the termination of his parental rights. 
The trial court terminated his parental rights, and we affirm the
judgment.

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

IN RE: ESTATE OF BILLY F. HAWK, JR.

Court:TCA

Attorneys:                          

Michael E. Richardson, Chattanooga, Tennessee, for Appellant William
F. Hawk.

W. Jeffrey Hollingsworth and William R. Dearing, Chattanooga,
Tennessee, for Appellee Estate of Billy F. Hawk, Jr.

Marvin Berke, Chattanooga, Tennessee, for Appellee Megan D. Hawk.

Stephen M. Goldstein, Chattanooga, Tennessee, Attorney Ad Litem for
Appellees, the Minor  Beneficiaries of the Estate of Billy F. Hawk,
Jr.

Judge: LEE

First Paragraph:

This case involves a petition filed by the co-executors of the Estate
of Billy F. Hawk, Jr. to approve a sale of real estate partially owned
by the Estate.  The issue presented is whether the trial court should
have approved the private sale.  The trial court held that the
proposed sale was not in the best interest of all the beneficiaries of
the Estate.  The proposed buyer appeals.  We hold that the trial
court's decision was not contrary to the preponderance of evidence,
nor was it arbitrary or capricious, and therefore, affirm the trial
court's judgment.

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

MARGIE MARIE LYNN, ET AL. v. EXPEDITERS EXPRESS, INC., ET AL.

Court:TCA

Attorneys:                          

Mathew R. Zenner, Nashville, Tennessee, for the appellants, Expediters
Express, Inc., et al.

Paul T. Housch, Nashville, Tennessee, for the appellees, Margie Marie
Lynn, et al.

Judge: COTTRELL

First Paragraph:

Plaintiff sued her employer for misrepresentation relating to health
insurance coverage and sought to recover amounts incurred by her
husband for medical bills.  The trial court found for plaintiff
awarding her treble and punitive damages.  We reverse the trial
court's finding of treble and punitive damages and affirm the trial
court's award of a refund to plaintiff for amounts contributed as
premiums.

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

KEVIN K. MCCRARY v. CITY OF MEMPHIS

Court:TCA

Attorneys:                          

Robert D. Meyers of Memphis for Appellant, City of Memphis

Samuel J. Muldavin of Memphis for Appellee, Kevin K. McCrary

Judge: CRAWFORD

First Paragraph:

City of Memphis challenges judgment of trial court finding the city
liable, under the Governmental Tort Liability Act, for negligence of a
police officer that proximately caused injuries to a criminal suspect
who was being placed under arrest. City contends that the trial court
erred in admitting into evidence the statement of police officer taken
during a police department internal investigation; in finding that the
officer's actions were negligent instead of intentional; and in
failing to apply properly the correct standard of care. Finding no
error, we affirm the judgment of the trial court.

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

IN RE M.O.

Court:TCA

Attorneys:                          

Aubrey L. Harper, McMinnville, Tennessee, for the appellant, L.O.R.

Paul G. Summers, Attorney General and Reporter, and Pamela A.
Hayden-Wood, Senior Counsel, for the appellee, Tennessee Department of
Children's Services.

Judge: KOCH

First Paragraph:

This appeal involves the termination of a biological father's parental
rights with regard to his nine-year-old daughter.  After determining
that the child had been sexually abused by her father, the Tennessee
Department of Children's Services filed a petition in the Circuit
Court for Grundy County seeking to terminate the father's parental
rights.  Following a bench trial, the trial court determined that the
father had committed severe child abuse and that his daughter's
interests would be best served by terminating his parental rights. 
The father asserts on this appeal that the Department failed to
present clear and convincing evidence that he had committed severe
child abuse.  We have determined that the record contains clear and
convincing evidence that the father committed severe child abuse and
that terminating his parental rights is in his daughter's best
interests.

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

IN RE:  ESTATE OF FRANK SOARD
WITH APPENDIX

Court:TCA

Attorneys:                          

Robert N. Goddard, Maryville, Tennessee, for the appellant, Sarah
Soard.

Martha S. L. Black, Maryville, Tennessee, for the appellee, Estate of
Frank Soard

Judge: SUSANO

First Paragraph:

This case involves a dispute between a widow and the personal
representative of her husband's estate.  The parties differ as to the
correct interpretation of Tenn. Code Ann. S 31-4-101 (2001), the
statute setting forth the criteria pursuant to which a surviving
spouse's elective share is computed.  The trial court adopted the
estate's construction of the statute and subtracted the widow's exempt
property, homestead allowance, and year's support allowance from the
value of her percentage share of the net estate in arriving at the
elective-share amount to which she is entitled.  We disagree with the
trial court's interpretation of the statute.  Accordingly, we reverse
the judgment of that court

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

APPENDIX
http://www.tba.org/tba_files/TCA/soardfrank_apx.wpd

RICHARD D. VATT, ET AL. v. A.L. JAMES D/B/A A.L. JAMES CONSTRUCTION
COMPANY

Court:TCA

Attorneys:                          

John P. Konvalinka and Mathew D. Brownfield, Chattanooga, Tennessee,
for the appellants,  Richard D. Vatt and Sharon Vatt.

Steven M. Jacoway, Chattanooga, Tennessee, for the appellee, A.L.
James d/b/a A.L. James Construction Company.

Judge: LEE

First Paragraph:

This case involves the alleged breach of a real estate sales contract.
 The plaintiffs argue that the defendant home builder is in breach of
contract because he refused to sell them the house contracted for
unless, in addition to the price stated in the contract, they paid him
for costs attributed to changes in construction. None of these changes
were implemented pursuant to written change orders as required under
the contract.  The builder countersued arguing that the changes for
which he sought payment were agreed to orally after the contract was
executed, that the written change order requirement of the contract
was waived, and that the plaintiffs breached the contract by refusing
to pay him the original contract price, plus the amount attributed to
the changes.  The trial court entered judgment in favor of the
defendant.  We affirm in part, reverse in part and remand.

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

STEVIE W. CALDWELL v. VIRGINIA LEWIS, WARDEN

Court:TCCA

Attorneys:                          

Stevie W. Caldwell, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner,
Assistant Attorney General; James Michael Taylor, District Attorney
General; and James W. Pope, III, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: GLENN

First Paragraph:

The petitioner, Stevie W. Caldwell, was convicted in 1995 in the White
County Criminal Court of first degree felony murder, aggravated arson,
and conspiracy to commit arson against personal property, for which he
was sentenced, respectively, to life, nineteen years, and six months,
to be served concurrently.  In a pro se petition for writ of habeas
corpus, he claimed that the indictment was defective, thereby
depriving the trial court of subject matter jurisdiction.  The trial
court dismissed the petition, and this timely appeal followed.  After
review, we affirm the dismissal.

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

STATE OF TENNESSEE v. JEROME DANCE

Court:TCCA

Attorneys:                          

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal), and Tom W.
Crider, District Public Defender (at trial and on appeal), for the
appellant, Jerome Dance.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; Garry G. Brown, District Attorney General;
and Jerald Campbell, Larry Hardister, and Elaine Todd, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant challenges the imposition of consecutive sentences,
based on the Supreme Court's recent holding in Blakely v. Washington. 
Our courts have previously held that neither Apprendi nor Blakely
affect the trial court's ability to impose consecutive sentences. 
Furthermore, upon reviewing the record, we conclude that the trial
court properly imposed consecutive sentences based on the defendant's
extensive record, consisting of twenty prior convictions.  Therefore,
we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. JAMES ROBERT DAVIS

Court:TCCA

Attorneys:                          

Charles E. Waldman, Memphis, Tennessee, (on appeal) and Frank
Deslaunies, Covington, Tennessee (at trial) for the appellant, James
Robert Davis.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General, and Walt Freeland, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, James Robert Davis, was convicted by a jury of felony
murder and aggravated robbery.  He was sentenced by the jury to life
without the possibility of parole on the felony murder conviction and
by the trial court to a twenty-year sentence on the aggravated robbery
conviction, to be served consecutively to the life sentence.  The
appellant appeals, arguing that: (1) the trial court erred in
admitting statements of the victim as excited utterances; (2) the
trial court erred by admitting tape recordings of the appellant's
telephone calls from the jail; (3) the evidence at trial was
insufficient to support the convictions; and (4) the evidence at trial
did not clearly establish the cause of the victim's death.  For the
following reasons, we affirm the judgment of the trial court.

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

STATE OF TENNESSEE v. PHYLLIS E. HATHAWAY

Court:TCCA

Attorneys:                          

Janie Lindamood, Johnson City, Tennessee, for the appellant, Phyllis
E. Hathaway.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe,
Assistant Attorney General; and Joe Crumley, District Attorney
General, for the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Phyllis Hathaway, appeals from the trial court's order
modifying her probation and setting her restitution.  On appeal, the
petitioner argues that the trial court erred in (1) imposing
consecutive sentences and probation on December 7, 1989 because the
judgments had become final; and (2) in determining restitution
fourteen (14) years after the sentencing hearing. Following review, we
conclude that the judgment expiration issue is without merit.  In
addition, we affirm the trial court's modification of the petitioner's
probation.  However, after review of the record, we conclude that the
trial court failed to follow the criteria set forth in Tennessee Code
Annotated section 40-35-304 when setting restitution.  Therefore,
regarding the issue of restitution, we reverse the judgment of the
trial court and remand for a new sentencing hearing consistent with
this opinion.

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

STATE OF TENNESSEE v. KENDRICK NAYLOR

Court:TCCA

Attorneys:                          

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Kendrick
Naylor.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
Assistant Attorney General; William L. Gibbons, District Attorney
General, and Betsy Carnesale and Paul Hagerman, Assistant District
Attorneys General, for the appellee, State of Tennessee.

Judge: SMITH

First Paragraph:

The appellant, Kendrick Naylor, was convicted by a jury of criminal
attempt to commit assault, felony evading arrest, and theft of
property over $10,000.  The trial court sentenced the appellant to
four (4) years as a Range II multiple offender for the evading arrest
conviction and six (6) months for the attempt to commit assault
conviction, to run concurrently to the sentence for evading arrest. 
The trial court sentenced the appellant to eight (8) years for the
theft of property conviction, to be served consecutively to the
four-year sentence for evading arrest, for a total effective sentence
of twelve (12) years.  After a motion for new trial was denied by the
trial court, a timely notice of appeal was filed.  On appeal, the
following issues are presented for review: (1) whether the trial court
erred in denying the appellant's motion for a mistrial; (2) whether
the evidence was sufficient to sustain the convictions; and (3)
whether the trial court erred in imposing consecutive sentences.  We
affirm the judgment of the trial court and the appellant's sentence
because we determine that the appellant's history of criminal
convictions more than justifies the sentence imposed.

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

JASON GALE OWENS and JORDAN BLAKE OWENS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellants,
Jason Gale Owens and Jordan Blake Owens.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

This is an appeal as of right from the trial court's denial of
post-conviction relief.  Upon entering guilty pleas, the two
Defendants were convicted of attempted first degree murder and
attempted second degree murder respectively, and received sentences of
fifteen and ten years' incarceration.  The Defendants filed petitions
for post-conviction relief, and after a consolidated evidentiary
hearing, the trial court denied relief to both Defendants. The
Defendants now appeal to this Court raising the issues of ineffective
assistance of counsel and involuntary pleas.  We affirm the judgment
of the trial court.

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

FARON DOUGLAS PIERCE v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Faron
Douglas Pierce.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; Randall E. Nichols, District Attorney
General; and Zane Scarlett, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: MCLIN

First Paragraph:

The petitioner, Faron Douglas Pierce, appeals the Knox County Criminal
Court's dismissal of his petition for post-conviction relief and
request for a delayed appeal.  On appeal, the petitioner argues that
he was denied effective assistance of counsel.  Specifically, the
petitioner argues that his counsel was ineffective in failing to allow
him to testify at his sentencing hearing, and in failing to file a
Rule 11 application for permission to appeal to the Tennessee Supreme
Court.  After review of the record, we grant the petitioner a delayed
appeal, and we stay further proceedings on his remaining
post-conviction claim.

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

STATE OF TENNESSEE v. RONALD JOSEPH REECE

Court:TCCA

Attorneys:                          

Patrick Martin, Jackson, Tennessee, for the Appellant, Ronald Joseph
Reece.

Paul G. Summers, Attorney General & Reporter; Michael Markham,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jim Thompson, Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

Ronald Joseph Reece pleaded guilty to statutory rape for which he
received a two-year probationary sentence.  Aggrieved of the trial
court's refusal to grant judicial diversion, he now appeals his
sentence.  After a thorough review of the record and applicable law,
we affirm the sentence imposed by the lower court.

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

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