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: March 15, 2005
Volume 11 — Number 049
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
03 New Opinion(s) from the Tennessee Court of Appeals
06 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. 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


KIM JONES, D/B/A KIM'S KIDDIE KORNER, v. STATE OF TENNESSEE

Court:TCA

Attorneys:                          

J. Michael Dixon, Knoxville, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter, and Steven B. McCloud,
Assistant Attorney General, Nashville, Tennessee, for appellee.

Judge: FRANKS

First Paragraph:

Claimant sought reimbursement for child care under the Child Care
Certificate Program.  The Commissioner granted the State summary
judgment on the grounds that the State was not contractually bound to
reimburse claimant under the governmental immunity statutory scheme. 
On appeal, we affirm.

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

RIVERSIDE SURGERY CENTER, LLC, ET AL. v. METHODIST HEALTH SYSTEMS,
INC.

Court:TCA

Attorneys:                          

Robert A. McLean and Georgia A. Robinette, Memphis, Tennessee, for the
appellants, Methodist Health Systems, Inc.

Douglas W. Wilkerson and W. Lewis Jenkins, Jr., Dyersburg, Tennessee,
for the appellees, Riverside Surgery Center, LLC, Jeffrey Swetnam,
M.D., G. S. Bindra, M.D., Richard Cape, M.D.,Jim Caylor, M.D., Roy
Chu, M.D., Michael Heck, M.D., Carl Huff, M.D., Jerry Jernigan, M.D.
Ian Laing, M.D., Russell Lomas, M.D., Fred Moore, M.D., Said Nabhan,
M.D. and Ramzi Younis, M.D.

Judge: FARMER

First Paragraph:

This case presents the interpretation of a transfer restriction clause
in an LLC operating agreement.  The plaintiffs filed a motion for
summary judgment requesting a declaration that the defendant, by
negotiating for the sale of its interest in the LLC and granting a
third-party buyer an option to purchase defendant's interest, had
triggered the plaintiffs' preemptive purchase rights under the
operating agreement.  The defendants filed a cross-motion for summary
judgment arguing that the transfer restriction clause in the operating
agreement was triggered only by written notice of the intent to sell,
which was never given.  The trial court found that, under the language
of the operating agreement, the plaintiffs' preemptive purchase rights
were triggered by the"desire or wish" of the selling member to
transfer its interest and that the defendant had the desire or wish to
transfer its membership interest in the LLC.  The defendant appeals. 
We affirm.

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

PATSY SMITH, AS NEXT OF KIN AND MOTHER OF SHAWN SMITH v. STATE OF
TENNESSEE

Court:TCA

Attorneys:                          

Leslie A. Muse and Gary E. Brewer, Morristown, Tennessee, for the
Appellant, Patsy Smith, as next of kin and mother of Shawn Smith.

Ronald C. Leadbetter, Associate General Counsel, for the Appellee,
State of Tennessee.

Judge: SWINEY

First Paragraph:

Shawn Smith died of aspiration of gastric contents while a patient at
the University of Tennessee Medical Center.  Shawn Smith's mother,
Patsy Smith ("Plaintiff"), sued the State of Tennessee ("the State"). 
The case was transferred to the Claims Commission ("the Commission"). 
After trial, the Commission entered a judgment for the State holding,
inter alia, that there was no breach of the standard of care. 
Plaintiff appeals claiming that the Commission erred in holding there
was no breach of the standard of care, that the Commission erred in
making certain factual findings, and that the Commission erred in
refusing to find that the integrity of the medical record had been
compromised.  We affirm.

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

STATE OF TENNESSEE v. GARY ALDEN BOWERS

Court:TCCA

Attorneys:                          

Robert Y. Oaks, Elizabethton, Tennessee, for the appellant, Gary Alden
Bowers.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Joe Crumley, District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Gary Alden Bowers, pled guilty in the Carter County
Criminal Court to three counts of aggravated burglary, one count of
burglary, two counts of theft of property over $500, two counts of
theft of property under $500, and one count of felony failure to
appear.  Following a sentencing hearing, the trial court sentenced the
appellant to an effective sentence of twenty years incarceration in
the Tennessee Department of Correction.  On appeal, the appellant
challenges the sentences imposed by the trial court in light of the
United States Supreme Court's decision in Blakely v. Washington, 542
U.S. __, 124 S. Ct. 2531 (2004).  Upon review of the record and the
parties' briefs, we affirm the judgments of the trial court.

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

SONYA GOSNELL v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Douglas L. Payne, Greeneville, Tennessee, Attorney for the Appellant,
Sonya Gosnell.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; John H. Bledsoe, Assistant Attorney General; and
Cecil C. Mills, Assistant District Attorney General, for the Appellee,
State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Sonya Gosnell, appeals the Greene County Criminal
Court's denial of her petition for post-conviction relief.  On appeal,
Gosnell raises the single issue of whether she was denied the
effective assistance of counsel.  After review of the record, we find
no error and affirm the judgment of the post-conviction court

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

STATE OF TENNESSEE v. RANDY L. JOHNSON

Court:TCCA

Attorneys:                          

Richard A. Tate, Blountville, Tennessee, for the appellant, Randy L.
Johnson.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth,
II, Assistant Attorney General; H. Greeley Wells, Jr., District
Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

First Paragraph:

The appellant, Randy L. Johnson, pled guilty in the Sullivan County
Criminal Court to two counts of aggravated assault and one count of
theft of property valued over $1,000.  He received a total effective
sentence of nine years incarceration in the Tennessee Department of
Correction.  The trial court granted the appellant probation. 
Subsequently, his probation was revoked because of new offenses and a
positive drug screen.  The trial court ordered the petitioner to serve
his sentences in confinement.  On appeal, the appellant challenges the
revocation of his probation.  Upon review of the record and the
parties' briefs, we affirm the judgments of the trial court.

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

STATE OF TENNESSEE v. GARY LEE MARISE

Court:TCCA

Attorneys:                          

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Gary
Lee Marise.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis,
Assistant Attorney General; Robert "Gus" Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Gary Lee Marise, was convicted by a Carroll County jury
of possession of anhydrous ammonia with the intent to manufacture a
controlled substance, a class E felony, and the misdemeanor offenses
of possession of methamphetamine, possession of marijuana, and
possession of drug paraphernalia.  For his conviction for the
possession of anhydrous ammonia, Marise received a two-year sentence,
with service of ninety days confinement, followed by supervised
probation.  On appeal, Marise raises two issues for our review: (1)
whether the evidence is sufficient to support the convictions and (2)
whether his sentence for possession of anhydrous ammonia is excessive.
 After review of the record, we affirm the judgments of conviction and
resulting felony sentence

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

STATE OF TENNESSEE v. NONA PILGRAM

Court:TCCA

Attorneys:                          

Philip A. Condra, District Public Defender; and B. Jeffery Harmon,
Assistant District Public Defender, for the Appellant, Nona Pilgram.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis,
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: WITT

First Paragraph:

A Bledsoe County grand jury indicted the defendant, Nona Pilgram, for
assault and vandalism resulting in $1,000 to $10,000 in damages to the
vehicle of the victim, Molly Myers.  A jury acquitted the defendant of
assault but convicted her of vandalism resulting in $500 to $1,000 in
damages.  For this conviction, the court ordered the defendant to
serve a six-year probationary sentence.  The defendant now appeals her
conviction and sentence, arguing that she is entitled to a new trial
or resentencing on the following grounds: (1) The trial court erred by
refusing to allow testimony regarding the victim's prejudice towards
the defendant; (2) the trial court erred by allowing hearsay evidence
regarding the fair market value of the victim's vehicle; (3) the trial
court erred by refusing to allow the introduction of an internet-based
estimate of the victim's vehicle; and (4) the trial court erred by
failing to comply with Tennessee Code Annotated sections 40-35-102
through 121 when determining whether the defendant was a viable
candidate for judicial diversion.  After a thorough review of the
record and applicable law, we affirm the defendant's conviction and
sentence.

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

STATE OF TENNESSEE v. REBECCA G. RATLIFF

Court:TCCA

Attorneys:                          

Mark H. Toohey, Kingsport, Tennessee, for the Appellant, Rebecca G.
Ratliff.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and James Goodwin and B. Todd Martin, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

The defendant, Rebecca G. Ratliff, appeals from the Sullivan County
Criminal Court's revocation of her probation.  On appeal, the
defendant claims that the trial court erred in ordering her to serve
her original two-year sentence in the Department of Correction. 
Because the record supports the trial court in its discretionary
determination to order incarceration, we affirm.

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

Inability of Counties to Prohibit the Sale of Cold Beer

Date: March 14, 2005

Opinion Number: 05-024

http://www.tba.org/tba_files/AG/2005/op24.pdf

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