Opinion FlashJuly 30, 2002Volume 8 — Number 131 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.
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, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version.
Howard H. Vogel IN RE EDWARD JAMES CRIM SR., AND JAYNE CRIM; EVA M. LEMEH, Trustee v. EMC MORTGAGE CORPORATION (Originally released 07/18/02; today with a correction on page 2.) Court:TSC Attorneys: Robert H. Waldschmidt, Nashville, Tennessee, for the Appellant, Eva M. Lemeh, Trustee David B. Herbert and Michael Gigandet, Nashville, Tennessee, for the Appellee, EMC Mortgage Corporation. Judge: DROWOTA First Paragraph: Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following questions from the United States Bankruptcy Court for the Middle District of Tennessee: (a) Whether the deed of trust was improperly acknowledged under Tennessee law; (b) If so, does the defective acknowledgment render the deed of trust void or voidable by a judicial lien creditor or a bona fide purchaser? Because the acknowledgment does not indicate that the wife was signing on behalf of her husband and because the certificate of acknowledgment does not substantially comply with the statutorily prescribed forms, the deed of trust is null and void as to judicial lien creditors and bona fide purchasers with respect to the transfer of the husband's interest in the property. Because the acknowledgment of the wife's signature substantially complies with the statutorily prescribed forms, the deed of trust is effective to transfer her right of survivorship in the property and is not voidable by a judicial lien creditor or bona fide purchaser without notice. http://www.tba.org/tba_files/TSC/inrecrimcorrection.wpd STATE OF TENNESSEE v. WILLIAM R. STEVENS (Originally released 05/14/02; today with correction on page 21.) Court:TSC Attorneys: Brock Mehler and F. Michie Gibson, Nashville, Tennessee, for the appellant, William R. Stevens. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant was found guilty by a Davidson County jury of hiring eighteen year-old Corey Milliken to murder his wife, Sandra Jean Stevens, and his mother-in-law, Myrtle Wilson. He was also convicted of especially aggravated robbery. The jury found two aggravating circumstances: (1) The defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person, Tenn. Code Ann. S 39-13- 204(i)(2); and (2) the defendant employed another to commit the murders for the promise of remuneration, Tenn. Code Ann. S 39-13-204(i)(4). Finding that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death for the murder of each victim. On the especially aggravated robbery conviction, the court sentenced the defendant to life without parole as a repeat violent offender with the sentence to run consecutively to both death sentences. The Court of Criminal Appeals affirmed the defendant's convictions and sentences of death. On automatic appeal to this Court, we affirm and hold as follows: (1) the trial court did not abuse its discretion in limiting the testimony of defendant's crime scene expert to his analysis of the evidence at the crime scene; (2) the trial court's exclusion of the testimony of Corey Milliken's foster father regarding Milliken's prior bad acts constituted harmless error; (3) the trial court applied hearsay and other evidentiary rulings in an unbiased and even-handed manner; and (4) the sentence of death is not disproportionate to the sentence imposed in similar cases. For all other issues not specifically discussed in this opinion, we agree with and affirm the judgment of the Court of Criminal Appeals. http://www.tba.org/tba_files/TSC/stevenswilliamrcorrected.wpd AMERICA ONLINE, INC. v. RUTH E. JOHNSON, COMMISSIONER OF REVENUE Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Margaret M. Huff, Assistant Attorney General, for the appellant, State of Tennessee. Joseph W. Gibbs and Patricia Head Moskal, Nashville, Tennessee and Curtis P. Lu, Washington, D.C., for the appellee, America Online, Inc. Judge: CANTRELL First Paragraph: The Chancery Court of Davidson County granted summary judgment to America Online, Inc. on the Commissioner of Revenue's claim that AOL's activities in this state gave it a sufficient nexus to subject it to state taxes. Because we find that this question is fact-specific and that the record does not show that AOL is entitled to a judgment as a matter of law, we reverse. http://www.tba.org/tba_files/TCA/aol.wpd STANLEY JEROME GREEN v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY Court:TCA Attorneys: Karl F. Dean, Director of Law, Kelli A. Haas and Margaret O. Darby, Nashville, Tennessee, for the appellant, the Metropolitan Government of Nashville and Davidson County, Tennessee. Stanley Jerome Green, Nashville, Tennessee, Pro Se. Judge: CANTRELL First Paragraph: A man arrested for statutory rape sought a writ of mandamus to compel the Metro Nashville Police Department to furnish him with copies of records relating to his arrest. Metro filed a motion to dismiss, arguing that records pertaining to sexual offenses against minors are confidential, and may not be disclosed. The trial court denied the motion to dismiss, and ordered the production of the requested records. We affirm the ruling of the trial court, but modify it to require that all records furnished to the petitioner be redacted to protect the victim's identity. http://www.tba.org/tba_files/TCA/greenstanley.wpd ROBERT FRED JONES, et al. v. VICK IDLES Court:TCA Attorneys: Jerry Shattuck, Clinton, Tennessee, for the Appellant Vick Idles. Roger L. Ridenour, Clinton, Tennessee, for the Appellees Robert Fred Jones and Virginia Leigh Jones. Judge: SWINEY First Paragraph: Robert Fred Jones ("Plaintiff") sued Vick Idles ("Defendant") for damages resulting from an automobile accident. Defendant filed a counter-claim. After a jury trial on the issue of liability, the jury determined Plaintiff was 90% at fault and Defendant was 10% at fault. Plaintiff filed a motion for new trial on all claims which the Trial Court granted after stating neither party had met their burden of proof. Defendant appeals only the granting of a new trial to Plaintiff on the claims raised in Plaintiff's complaint. We affirm. http://www.tba.org/tba_files/TCA/jonesrf.wpd BRENDA R. LEHMAN v. SYLVIA J. VINES Court:TCA Attorneys: Sylvia J. Vines, Pro Se Melissa Blackburn, Nashville, For Appellee, Brenda R. Lehman Judge: CRAWFORD First Paragraph: Plaintiff-attorney sued former client for balance of amount due under fee agreement. In a nonjury trial, the trial court found that the client owed a balance of $4,209.00, and entered judgment for plaintiff in that amount. The client appeals, and we reverse and remand. http://www.tba.org/tba_files/TCA/lehmanbrenda.wpd CAROLINE ELIZABETH SMITH v. MARK O. SMITH Court:TCA Attorneys: Gary M. Williams, Hendersonville, Tennessee, for the appellant, Caroline Elizabeth Smith. Michael W. Edwards, Hendersonville, Tennessee, for the appellee, Mark O. Smith. Judge: KILCREASE First Paragraph: OPINION GRANTING APPELLEE MARK O. SMITH'S MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES. http://www.tba.org/tba_files/TCA/smithcarolinee.wpd GEARLD SMITH v. ARTHER BENNETT, et al. Court:TCA Attorneys: Gearld Smith, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Nichon Shannon, Assistant Attorney General, for the appellees, James B. Bennett, Joy Griffin, Glen Bargery, A. Alfred Gifford, Candace Prince, Mary Louise Gouldin, Sheila Jones, June Swift, Jeanine Stanley, Cherry Lindamood and Jim Rose. Judge: SUSANO First Paragraph: Gearld Smith, a prisoner in state custody, filed a complaint pro se styled "for violation of civil rights pursuant to Title 42 U.S.C. S 1983." The defendants, all of whom are state employees, filed a motion for summary judgment supported by affidavits. The plaintiff responded with his own affidavit, the affidavits of two other prisoners, and documents. The trial court granted the defendants' motion. We affirm. http://www.tba.org/tba_files/TCA/smithg.wpd STATE OF TENNESSEE v. SHAWN M. BROOKS Court:TCCA Attorneys: Merrilyn Feirman, Nashville, Tennessee; Richard Brodhead, Assistant Public Defender, Lebanon, Tennessee, for the Appellant, Shawn M. Brooks. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and David Durham, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, Shawn M. Brooks, appeals from the judgment of the Wilson County Circuit Court revoking his probation. In May of 1996, Brooks pled guilty to sale of a Schedule I controlled substance, lysergic acid diethylamide (LSD), and received a split confinement sentence of eight years with one year to be served in confinement followed by seven years supervised probation. Again, in May of 1999, Brooks pled guilty to sale of a counterfeit controlled substance and received a two-year suspended sentence to be served consecutively to the 1996 sentence. On April 10, 2001, a probation violation warrant was issued for only the1996 sentence based upon a new arrest in DeKalb County for numerous offenses. At the probation violation hearing, Brooks admitted guilt, which resulted in the revocation of his sentence and the reinstatement of his original eight-year sentence in the Department of Correction. Thirty days later, an amended order was entered by the trial court revoking Brooks' 1999 two-year suspended sentence on the same grounds. On appeal, he argues that the trial court erred by failing to consider alternatives to revocation. After review, we find that the trial court did not abuse its discretion by revoking Brooks' 1996 conviction. However, with regard to revocation of the 1999 sentence, we find that the proceedings failed to afford fundamental due process protections. Accordingly, we reverse and vacate the trial court's amended order revoking Brooks' two-year suspended sentence for sale of a counterfeit controlled substance. http://www.tba.org/tba_files/TCCA/brooksm.wpd STATE OF TENNESSEE v. ARTHUR J. HOLMES Court:TCCA Attorneys: Douglas P. Jones, Elizabethton, Tennessee, for the appellant, Arthur Joe Holmes. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Greeley Wells, District Attorney General; and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Arthur J. Holmes, pled guilty to three counts of theft under $500, class A misdemeanors; two counts of theft over $500, class E felonies; six counts of forgery, class D and E felonies; and four counts of identity theft, class D felonies. The Defendant's plea agreement provided for an effective ten year sentence as a Range II, multiple offender. After a hearing on the manner in which the Defendant would serve his sentence, the trial court denied an alternative sentence and ordered the Defendant to serve his sentence in the Department of Correction. The Defendant now appeals as of right. We affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/holmesaj.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
|
© Copyright 2002 Tennessee Bar Association
|