Opinion Flash

July 30, 2002
Volume 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.

This Issue (IN THIS ORDER):
 
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
06 New Opinion(s) from the Tennessee Court of Appeals
02 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
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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

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