Learn how to avoid legal malpractice claims Legal malpractice claims are growing more common and insurance coverage is becoming more expensive and difficult to obtain. This 3-hour seminar will discuss current legal developments in the area of legal malpractice, common (but often avoidable) mistakes by lawyers and ethical issues implicated by legal malpractice claims. https://www.tba.org/onsiteinfo/legalmal_2005.html    TODAY'S OPINIONS: Wednesday, November 23, 2005 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 - TN Supreme Court 00 - TN Worker's Comp Appeals 00 - TN Supreme Court - Rules 06 - TN Court of Appeals 09 - TN Court of Criminal Appeals 00 - TN Attorney General Opinions 00 - Judicial Ethics Opinions 00 - Formal Ethics Opinions - BPR 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 IN RE: ADOPTION OF AMH, A Minor JERRY L. BAKER and wife, LOUISE K. BAKER v.SHAO-QIANG (JACK) HE and wife, QIN (CASEY) LUO WITH DISSENTING OPINION Court: TCA Attorneys: David A. Siegel, Memphis, TN, for Appellant, Shao-Qiang (Jack) He Richard A. Gordon, Memphis, TN, for Appellant, Qin (Casey) Luo Larry E. Parrish, Memphis, TN, for Appellees Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel,Nashville, TN, In Defense of Challenged Tennessee Statutes Christina A. Zawisza, Memphis, TN, for Amicus Curiae: Childlaw Center, Vanderbilt LegalClinic, Child Advocacy Clinic, Tennessee Alliance for Legal Services Scott A. Kramer, Memphis, TN, for Amicus Curiae: Greater Seattle Chapter of the Organizationof Chinese Americans, Inc. Linda L. Holmes, Memphis, TN, for Guardian Ad Litem, Kimbrough Mullins Judge: HIGHERS In this appeal, we are called upon to evaluate the trial court’s decision to terminate the parentalrights of the biological parents to a minor child. The biological parents are Chinese immigrants who are presently in this country illegally and are subject to deportation proceedings. Shortlyafter coming to the United States, the biological parents had a daughter. Facing financial difficulties at the time of their daughter’s birth, the parents decided to place their daughter in thecare of an adoption agency until their financial situation improved. The agency placed the child with foster parents who agreed to care for the child over an initial three month period. At theconclusion of the three month foster care period, the biological parents agreed to the entry of a consent order by the juvenile court transferring custody of the child to the foster parents. Thebiological parents continued to visit with their daughter at the home of the custodial non-parents approximately once each week for one hour each visit. However, they paid no child support tothe custodial non-parents. The biological parents subsequently filed a petition to modify the juvenile court’s custody order seeking to regain custody of their daughter, which the courtdenied. Thereafter, the biological parents continued to visit their daughter with the same frequency as before. On one day in particular, the biological parents asked to take their daughterfor a family portrait, and the custodial non-parents refused their request. When the biological parents refused to leave the custodial non-parents’ home, the police were called. After speakingwith the police, the biological parents left the home and never returned to visit their daughter citing their fear of arrest. A short time after this incident, the biological parents filed a secondpetition to modify the juvenile court’s custody order. In response, the custodial non-parents filed a petition to adopt the child and to terminate the biological parents’ parental rights in thechancery court, primarily relying on the ground of abandonment. As a result, the biological parents’ petition to modify the custody order was transferred to the chancery court. Following alengthy and tortured procedural history, the chancery court held a bench trial in the matter and subsequently entered an order terminating the biological parents’ parental rights. The biologicalparents filed a timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court in this case. However, in light of our decisions on certain issues presented inthis case, we need not remand this case to the chancery court for further proceedings. http://www.tba2.org/tba_files/TCA/2005/bakerj112305.pdf DISSENTING OPINION http://www.tba2.org/tba_files/TCA/2005/bakerj_dis112305.pdf THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. CIGNA HEALTHCARE OF TENNESSEE, INC. Court: TCA Attorneys: Karl F. Dean, Lora Barkenbus Fox and John L. Kennedy, Nashville, Tennessee, for theappellant, The Metropolitan Government of Nashville and Davidson County. Gary C. Shockley and Brigid M. Carpenter, Nashville, Tennessee, for the appellee, CignaHealthcare of Tennessee, Inc. Judge: CLEMENT The Metropolitan Government of Nashville and Davidson County appeals the summarydismissal of an action against Cigna Healthcare of Tennessee, Inc. The claims are a result of Cigna’s failure to purchase a performance bond in assurance of Cigna’s fulfillment of itsobligation to Metro employees. Metro circulated a Request for Proposal to provide health insurance services for Metro employees for a four-year period which required the successfulbidder to purchase a performance bond. Cigna was a successful bidder and fully performed all obligations, with the exception of the performance bond. As the term neared expiration, Metrodiscovered Cigna had not provided the bond and, moreover, that the parties had failed to execute a written agreement. After negotiations to execute a written agreement failed, Metro filed thisaction contending Cigna was unjustly enriched by failing to provide the performance bond and, alternatively, that Cigna was in breach of contract by failing to provide the bond. Cigna deniedliability and moved for summary judgment. The trial court summarily dismissed the unjust enrichment claim finding Cigna had not charged Metro for the cost of a performance bond, thusit was not unjustly enriched. The trial court also dismissed the breach of contract claim finding Metro had failed to satisfy a condition precedent to recover on the claim. Metro appealscontending material facts are in dispute. We affirm the dismissal of both claims. http://www.tba2.org/tba_files/TCA/2005/cigna112305.pdf ANGELA GATLIN ENGLAND v. PATRICK RALPH ENGLAND Court: TCA Attorneys: Brian M. House, Ringgold, Georgia, for the Appellant, Patrick Ralph England. Angela Gatlin England, Delray Beach, Florida, pro se, Appellee. Judge: LEE This is a post-divorce case involving a modification of child support. At a hearing on April 22, 2003, the trial court ordered Ms. England to pay child support in the amount of $775 per month. Mr. England filed a petition for contempt and at a hearing on August 31, 2004, the trial court determined that Ms. England was in arrears in the payment of her child support, but decreased Ms. England’s child support to $611 per month for the time period from April 22, 2003, through April 28, 2004, and to $92 per week beginning April 29, 2004. Mr. England appealed. After careful review of the record and the applicable authorities, we reverse the trial court’s decision reducing Ms. England’s child support obligation from April 22, 2003 until the date of the hearing because it was a retroactive modification in violation of Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 2004). We affirm the trial court’s decision to modify Ms. England’s child support obligation from and after the date of the modification hearing. http://www.tba2.org/tba_files/TCA/2005/englanda112305.pdf M.D. v. R.L.H. Court: TCA Attorneys: Brennan P. Lenihan, Clinton, Tennessee, for the Appellant R.L.H. Sam F. Lain, Oak Ridge, Tennessee, for the Appellee M.D. Judge: SWINEY M.D. (“Mother”) filed a petition seeking to terminate the parental rights of R.L.H. (“Father”) to the parties’ seven year old son. Following a hearing, the Juvenile Court held that grounds for terminating Father’s parental rights had been established by clear and convincing evidence. However, the Juvenile Court made no factual findings or conclusions of law as to whether terminating Father’s parental rights was in the best interest of the child. The judgment of the Juvenile Court is affirmed in part, vacated in part, and remanded for further proceedings. http://www.tba2.org/tba_files/TCA/2005/md112305.pdf BEVERLY C. SMITH v. RONNIE R. SMITH, ET AL. Court: TCA Attorneys: August C. Winter, Brentwood, Tennessee, for the appellants, Ronnie R. Smith and Betty Jo W.Smith. James M. Lea, Jr., Robert Evans Lee, Lebanon, Tennessee, for the appellee, Beverly C. Smith. Judge: COTTRELL This case involves an intrafamily transaction in real property. A now-deceased owner of a pieceof commercial property held by tenancy by the entireties agreed to sell it to his nephew in a handshake transaction. The nephew made a $10,000 down payment, began paying off thebalance in monthly installments, and made improvements to the property. After the seller died, his widow filed a complaint for declaratory judgment asking the court to declare the rights of theparties with regard to the real property. Although the trial court found there was indeed an agreement between the uncle and the nephew to sell the land to the nephew, the court declined torequire the widow to effectuate the contract, not because she had not agreed to the sale, but because she offered to reimburse the nephew for all his out-of-pocket costs. Because weconclude the widow should be estopped from asserting the statute of frauds to avoid the sale, and because her offer cannot limit the buyer’s remedies, we reverse. http://www.tba2.org/tba_files/TCA/2005/smithb112305.pdf EDWARD H. TENISON v. THE PENN WARRANTY CORPORATION Court: TCA Attorneys: Michael L. Weinman, Jackson, Tennessee, for the appellant, Penn Warranty Corporation. James R. Tomkins, Nashville, Tennessee, for the appellee, Edward H. Tenison. Judge: COTTRELL This appeal involves interpretation of a warranty contract for used cars. Since the contractprovided no exclusion for an inaccurate odometer, we affirm the trial court’s enforcement of the warranty. http://www.tba2.org/tba_files/TCA/2005/tenisone112305.pdf STATE OF TENNESSEE v. LESTER JAMES FARRIS, JR. Court: TCCA Attorneys: Shana Johnson, Assistant Public Defender, Somerville, Tennessee, for the appellant, LesterJames Farris, Jr. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee. Judge: WELLES This is a direct appeal as of right from jury verdict convictions for aggravated robbery,aggravated burglary and theft of property. The Defendant, Lester James Farris, Jr., was sentenced as a Range II, multiple offender to an effective twenty year sentence. The Defendantargues three issues on appeal: (1) the trial court erred in denying his motion to suppress a statement he made to law enforcement officers; (2) there is insufficient evidence to find himguilty beyond a reasonable doubt of the three offenses for which he was convicted; and (3) his sentence is excessive. We affirm the judgments of the trial court. http://www.tba2.org/tba_files/TCCA/2005/farrisl112305.pdf BERNARDO C. LANE v. STATE OF TENNESSEE Court: TCCA Attorneys: Scott Hall, Memphis, Tennessee, for the appellant, Bernardo Lane. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES The Defendant, Bernardo C. Lane, petitioned for post-conviction relief, alleging ineffectiveassistance of counsel. After an evidentiary hearing, the trial court denied relief. This direct appeal followed. We affirm the judgment of the trial court. http://www.tba2.org/tba_files/TCCA/2005/laneb112305.pdf STATE OF TENNESSEE v. LOUISE DAWSON MARLOW Court: TCCA Attorneys: Ernest W. Williams (on appeal and at trial) Franklin, Tennessee; John D. Schwalb, (on appeal) Franklin, Tennessee; and Robert T. Carter, Tullahoma, Tennessee (at trial), for the appellant, Louise Dawson Marlow. Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; and C. Michael Layne, District Attorney General; and Kenneth Shelton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: MCLIN The defendant, Louise Dawson Marlow, pled nolo contendere to reckless homicide and agreed to a sentence of seven years as a Range II, multiple offender. The trial court sentenced the defendant to one year in confinement followed by six years in community corrections. This Court concluded on direct appeal that the defendant was not eligible for community corrections and remanded for resentencing. Upon remand, the trial court re-sentenced the defendant to serve her entire sentence in confinement. The defendant again appeals, arguing that the trial court erred in re-sentencing. We affirm the judgment of the trial court. http://www.tba2.org/tba_files/TCCA/2005/marlowl112305.pdf STATE OF TENNESSEE v. HENRY MARTINEZ Court: TCCA Attorneys: Henry Martinez, Tiptonville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant AttorneyGeneral; and Victor S. (Torry) Johnson III, District Attorney General, and Lisa Naylor, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL On December 17, 1999, Defendant, Henry Martinez, pled guilty to the Class A felony offense ofconspiracy to sell more than 300 pounds of marijuana. Under the negotiated plea agreement, he received a sentence of fifteen (15) years as a Range I, standard offender. Also, pursuant to thenegotiated plea agreement, the State dismissed a charge of possession with intent to deliver seventy (70) pounds of marijuana within 1000 feet of a school, as long as he testified truthfullyagainst his co-defendants in the case. On July 19, 2004, Defendant filed a motion to withdraw his guilty plea. The motion was denied by the trial court and defendant has appealed to thisCourt. The State has filed a motion to affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that the motion hasmerit, grant same, and affirm the judgment of the trial court. http://www.tba2.org/tba_files/TCCA/2005/martinezh112305.pdf STATE OF TENNESSEE v. FRANK McDONNELL ORDER Court: TCCA Attorneys: Judge: PER CURIAM This case was heard on the Court’s docket in Nashville on October 25, 2005. The recordcontains a motion for new trial timely filed by Defendant, Frank McDonnell, on July 1, 2004. The original judgment was entered June 21, 2004. While an amended judgment was enteredOctober 29, 2004, and a timely notice of appeal therefrom was filed November 24, 2004, the record does not contain any order or transcript of any proceedings showing that a disposition wasmade on the motion for new trial. ORDER http://www.tba2.org/tba_files/TCCA/2005/mcdonnellf112305.pdf STATE OF TENNESSEE v. CHRISTOPHER LAWRENCE MILLIKEN Court: TCCA Attorneys: John H. Norton, III, Shelbyville, Tennessee, for the appellant, Christopher Lawrence Milliken. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General;Mike McCown, District Attorney General; and Michael D. Randles and Ann Filer, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WELLES The Defendant, Christopher Lawrence Milliken, pled guilty to one count of resisting a stop, frisk,halt, arrest or search; one count of simple possession of marijuana; and one count of violating the implied consent law. In conjunction with his guilty pleas, the Defendant reserved a certifiedquestion of law for this Court’s consideration. Because the certified question of law is not dispositive of the Defendant’s case, we dismiss this appeal. http://www.tba2.org/tba_files/TCCA/2005/millikenc112305.pdf JOE CLARK MITCHELL v. STATE OF TENNESSEE Court: TCCA Attorneys: Joe Clark Mitchell, pro se, Clifton, Tennessee. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER The Petitioner, Joe Clark Mitchell, appeals the trial court’s denial of his motion to dismiss and expunge. The State has filed a motion requesting that the Court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State’s motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals. http://www.tba2.org/tba_files/TCCA/2005/mitchellj112305.pdf STATE OF TENNESSEE v. RONNIE D. SIMS Court: TCCA Attorneys: James Martin, Nashville, Tennessee, for the appellant, Ronnie D. Sims. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant AttorneyGeneral; Victor S. Johnson, District Attorney General; and Dumaka Shabazz, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES The Defendant, Ronnie D. Sims, was convicted by a jury of one count of aggravated robbery,one count of vandalism,1 and one count of possession of burglary tools. After a hearing, the trial court sentenced the Defendant as a Range II, multiple offender, to seventeen years in theDepartment of Correction for the aggravated robbery conviction. The trial court sentenced the Defendant to concurrent sentences of six years for the vandalism conviction and eleven months,twenty-nine days for the burglary tools offense. In this direct appeal, the Defendant contests the sufficiency of the evidence; claims that his right to a fair trial was compromised by the State’sloss of evidence; and complains that his seventeen year sentence for the aggravated robbery is excessive. We affirm the judgments of the trial court. http://www.tba2.org/tba_files/TCCA/2005/simsr112305.pdf STATE OF TENNESSEE v. WADE P. TUCKER Court: TCCA Attorneys: Robert G. Morgan and Francis Pryor, Assistant Public Defenders, Jasper, Tennessee, for theappellant, Wade P. Tucker. Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant AttorneyGeneral; J. Michael Taylor, District Attorney General; and Steve M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES This is an appeal as of right from a denial of post-conviction relief. The Defendant, Wade P.Tucker, was convicted of attempted first-degree murder pursuant to a guilty plea, and especially aggravated robbery and aggravated burglary following a bench trial. The Defendant wassentenced to twenty-four years in the custody of the Tennessee Department of Correction (TDOC). This Court upheld the Defendant’s attempted murder and especially aggravatedrobbery convictions on direct appeal, but reversed the conviction for aggravated burglary. See State v. Wade P. Tucker, No. M2001-02298-CCA-R3-CD, 2002 WL 1574998 (Tenn. Crim.App., Nashville, July 17, 2002). The Defendant subsequently filed a petition for post-conviction relief, which was denied. The Defendant now appeals denial of post-conviction relief, arguing:(1) his conviction for attempted first degree murder is void due to a faulty guilty plea; and (2) he received ineffective assistance of trial counsel. We affirm the judgment of the post-convictioncourt. http://www.tba2.org/tba_files/TCCA/2005/tuckerw112305.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 instructions 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? 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