Opinion FlashNovember 1, 2002Volume 8 — Number 194 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):
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. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel IN RE RONALD LEBRON AKINS, SR. Court:TSC Attorneys: HOLDER Linda W. Knight, Nashville, Tennessee, for the appellant, Community Trust & Banking Company. Christopher Todd Varner and Richard P. Jahn, Jr., Chattanooga, Tennessee, for the appellee, Richard P. Jahn, Jr. Amy Pierce and B. Anthony Saunders, Nashville, Tennessee, for the amicus curiae, Tennessee Bankers Association. Judge: HOLDER First Paragraph: Pursuant to Rule 23 of the Supreme Court of Tennessee, this Court accepted certification of the following questions from the United States Bankruptcy Court for the Eastern District of Tennessee, Southern Division: (1) Whether the following acknowledgment on a deed of trust is valid under Tennessee law: State of Tennessee County of Bradley I, Tammy Bentley, a Notary Public of the county and state first above written, do hereby certify that Ronald L. Akins, unmarried, personally appeared before me this day and acknowledged the execution of the foregoing instrument. Witness my hand and official seal, this 12th day of April, 2000. //s// Tammy Bentley Notary Public My commission expires: 2/26/2003 (2) If the foregoing certificate of acknowledgment is not valid, then whether the admittedly valid acknowledgment on the assignment of rents cures the defective acknowledgment on the deed of trust under the circumstances of this case. We hold that the deed of trust in this case was properly acknowledged under Tennessee law and is not voidable by a judicial lien creditor or a bona fide purchaser for value. http://www.tba.org/tba_files/TSC/AkinsRL.wpd TIMOTHY LEE KENDRICK v. JUDY KENDRICK SHOEMAKE WITH CONCURRING OPINION Court:TSC Attorneys: Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Timothy Lee Kendrick. Harold L. North, Jr. and Robert D. Philyaw, Chattanooga, Tennessee, for the appellee, Judy Kendrick Shoemake. Judge: HOLDER First Paragraph: We granted this appeal to determine the proper standard to apply to a petition to modify custody when both parents are parties. We hold that a trial court may modify an award of child custody when both a material change of circumstances has occurred and a change of custody is in the child's best interests. We hold that the preponderance of the evidence does not support the trial court's ruling that a material change of circumstances has occurred. We therefore do not address the second inquiry-whether a change of custody is in the child's best interests. The judgment of the Court of Appeals is affirmed, as modified, and the case is remanded to the trial court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/KendrickTL.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TSC/KendrickTL_con.wpd STATE OF TENNESSEE v. TAKEITA M. LOCKE Court:TSC Attorneys: Wade V. Davies (on appeal) and Gerald Lee Gulley, Jr. (at trial), Knoxville, Tennessee for the appellant, Takeita M. Locke. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: BARKER First Paragraph: The defendant, Takeita M. Locke, was tried and convicted in the Knox County Criminal Court of felony murder and especially aggravated robbery in the death of Chuck Newman. The Court of Criminal Appeals unanimously affirmed both convictions. We granted this appeal to determine if the trial court committed reversible error by failing to instruct the jury on certain lesser-included offenses of felony murder, namely: second degree murder, reckless homicide, and criminally negligent homicide. Additionally, with respect to her conviction for especially aggravated robbery, the defendant maintains that the trial court committed reversible error by failing to instruct the jury on the lesser-included offenses of facilitation of a felony (especially aggravated robbery), aggravated robbery, and robbery. After examining the facts and the law relevant to these issues, we hold that the trial court's failure to instruct the jury on the lesser-included offenses of second degree murder, reckless homicide, and criminally negligent homicide was reversible error. We also hold that the trial court's failure to instruct on the lesser-included offenses of facilitation of especially aggravated robbery, aggravated robbery, and robbery was erroneous, but such errors were harmless beyond a reasonable doubt. http://www.tba.org/tba_files/TSC/LockeT.wpd HUBERT PATTY v. BOARD OF PROFESSIONAL RESPONSIBILITY Court:TSC Attorneys: Hubert D. Patty, Maryville, Tennessee, Pro Se. James A. Vick, Nashville, Tennessee, for the appellee, Board of Professional Responsibility. Judge: ANDERSON First Paragraph: This is a direct appeal in a Board of Professional Responsibility case. A hearing committee found that the petitioner violated four disciplinary rules arising out of client representation, imposed a one- year suspension from the practice of law, and ordered the petitioner to complete courses in ethics and civil procedure at an accredited law school before applying for reinstatement. The chancery court upheld the hearing committee's findings and conclusions with respect to the violations, but reduced the suspension to 60 days and vacated the requirement for law school education. http://www.tba.org/tba_files/TSC/PattyH.wpd STATE OF TENNESSEE v. LINNELL RICHMOND Court:TSC Attorneys: Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney; for the appellant, State of Tennessee. Wade V. Davies, Knoxville, Tennessee (on appeal) and Keith E. Haas, Sevierville, Tennessee (at trial) for the appellee, Linnell Richmond. Judge: BARKER First Paragraph: Following a jury trial, the defendant, Linnell Richmond, was found guilty by a Knox County jury of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. The trial court sentenced the defendant to an effective sentence of twenty- two years for his convictions, to be served consecutively to a federal sentence arising out of the same criminal episode. The Court of Criminal Appeals reversed the judgment of the trial court upon finding that the trial court erred in failing to instruct the jury on: (1) the "natural and probable consequence rule" in relation to the charges of attempted first degree murder; and (2) robbery as a lesser-included offense of aggravated robbery, and attempted robbery as a lesser- included offense of attempted aggravated robbery. The State appealed to this Court, and we granted the application. We hold that: (1) it was harmless error by the trial court to fail to instruct the jury on the natural and probable consequences rule in relation to the charge of attempted first degree murder; and (2) it was likewise harmless error by the trial court in failing to instruct the jury regarding robbery as a lesser included offense of aggravated robbery, and attempted robbery as a lesser-included offense of attempted aggravated robbery. Therefore, the judgment of the Court of Criminal Appeals is reversed, and the defendant's convictions are reinstated. This case is remanded to the trial court for enforcement of the judgment. http://www.tba.org/tba_files/TSC/RichmondL.wpd J. Y. SEPULVEDA v. STATE OF TENNESSEE Court:TSC Attorneys: Tim S. Moore, Newport, Tennessee, for the appellant, J. Y. Sepulveda. Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; and Angele M. Gregory, Assistant Attorney General, for the appellee, State of Tennessee. Judge: BIRCH First Paragraph: In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed. http://www.tba.org/tba_files/TSC/SepulvedaJ.wpd DR. ROBERT EMANS v. THE BOARD OF REGENTS OF THE STATE OF TENNESSEE, et al. Court:TCA Attorneys: Paul G. Summers, Attorney General and Reporter; Denielle Vonende Young, Assistant Attorney General, for the appellant, State of Tennessee. Patrick T. McNally, Nashville, Tennessee, for the appellee, Dr. Robert Emans. Judge: CANTRELL First Paragraph: The Claimant was appointed Dean of the College of Education of Tennessee State University in 1990, evidenced by a Notice of Appointment and Agreement of Employment. Four years later, he was terminated as Dean, and appointed to the tenured position of Professor, at a lesser salary. In this action he sought damages for breach of contract, inter alia. The Commission ruled that the Claimant, although lawfully terminated as Dean, was nevertheless entitled to receive the salary of a deanship. http://www.tba.org/tba_files/TCA/EmansR.wpd JAMES STANLEY FERGUSON v. KELLY LEE (CILLEY) FERGUSON Court:TCA Attorneys: James Stanley Ferguson, Clifton, Tennessee, Pro Se. Kelly Lee (Cilley) Ferguson, Bristol, Virginia, Pro Se. Judge: CAIN First Paragraph: Appellant, an inmate of the Tennessee Department of Correction currently confined at South Central Correctional Center in Clifton, Wayne County, Tennessee, appeals the dismissal by the trial court of his divorce complaint. His wife is a resident of Bristol, Virginia, and the parties separated in Cheatham County, Tennessee in 1987. The trial court dismissed the case for lack of venue. We affirm with a suggestion that the case be transferred to a court having divorce jurisdiction in Cheatham County, Tennessee, or such a court in the county where Appellant resided at the time he was first incarcerated in the Department of Corrections. http://www.tba.org/tba_files/TCA/FergusonJS.wpd TIMOTHY J. MIELE and wife, LINDA S. MIELE, Individually, and d/b/a MIELE HOMES v. ZURICH U.S. Court:TCA Attorneys: Thomas C. Corts, Julie Bhattacharya Peak, Nashville, TN, for Appellants William H. Tate, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a complaint filed against the Appellants in the Chancery Court of Williamson County for negligence, breach of contract, and violation of the Tennessee Consumer Protection Act relating to the construction of and failure to repair a new home. The Appellants were insured by the Appellee. Following a jury trial, the jury found that the Appellants breached the construction contract. The jury also found that the Appellants were guilty of negligence and engaged in willfully deceptive or unfair actions. The jury returned a verdict against the Appellants for $98,500.00. The Chancery Court of Williamson County doubled the damages under the Tennessee Consumer Protection Act and awarded attorney's fees and costs in the total amount of $303,248.55. The Appellee paid $48,500.00 in satisfaction of the judgment. http://www.tba.org/tba_files/TCA/MieleTJ.wpd PIONEER SUBDIVISION HOMEOWNERS ASSOCIATION, INC. v. PROFESSIONAL COUNSELING SERVICES, INC. WITH CONCURRING OPINION Court:TCA Attorneys: John W. Palmer, Jason L. Hudson, Dyersburg, TN, for Appellant David A. Riddick, Jackson, TN, for Appellee Paul G. Summers, Attorney General and Reporter, Pamela A. Hayden-Wood, Assistant Attorney General, Nashville, TN, for Amicus Curiae, State of Tennessee Judge: HIGHERS First Paragraph: This appeal arises from the Appellant's purchase of a home in the Appellee's subdivision which the Appellant intended to use as a group home for mentally handicapped persons. The Appellee filed a petition against the Appellant in the Chancery Court of Dyer County seeking injunctive relief. The petition alleged that the subdivision's restrictive covenant prohibited any business use or other use of property in the subdivision other than a private residence or single family dwelling. The Appellant filed an answer and counterclaim. Following a trial, the trial court denied the Appellee's request for an injunction. The trial court ordered that the Appellant include at least two residents of the subdivision on the selection committee used to select residents for the group home. The trial court stated that it retained jurisdiction of the case for enforcement of the judgment as needed upon petition of either party. http://www.tba.org/tba_files/TCA/Pioneer.wpd CONCURRING OPINION: http://www.tba.org/tba_files/TCA/PioneerC_con.wpd CONNIE PUGH v. POPLAR EAST APARTMENTS, et al. Court:TCA Attorneys: Mark Allen, Memphis, Tennessee, for the appellant, Connie Pugh. Douglas A. McTyier, Memphis, Tennessee, for the appellees, Poplar East Apartments and H. M. Heckle Management Company. Judge: FARMER First Paragraph: This case involves allegations of unlawful ouster. The trial court awarded summary judgment to the defendant landlord. We affirm. http://www.tba.org/tba_files/TCA/Pughc.wpd ANGELA D. SIEFKER v. GARY C. SIEFKER Court:TCA Attorneys: D. Scott Parsley, Nashville, Tennessee, for the appellant Gary C. Siefker. Phillip Robinson, Nashville, Tennessee, for the appellee Angela D. Siefker. Judge: LILLARD First Paragraph: This is a post-divorce case regarding alimony and child support. The husband was ordered to pay alimony in futuro, and child support for the parties' minor child. Later, the husband was terminated from his job, and his income dropped substantially. The husband fell behind in his support payments. Consequently, he sought a reduction in alimony and child support. Noting that the husband retained substantial assets, the trial court found that the husband was able to fulfill his obligations, denied his request for reduction in alimony, ordered him to pay his arrearage in alimony and child support, and awarded the wife reasonable attorney's fees. Child support was terminated because the minor child had graduated from high school by the time of the trial. The husband now appeals. We affirm, finding no abuse of the trial court's discretion, in view of the termination of the husband's child support obligation, the wife's continued need for alimony, and the husband's retention of significant assets. http://www.tba.org/tba_files/TCA/SiefkerAD.wpd MARK TINSLEY v. SUZANNE RENEE TINSLEY Court:TCA Attorneys: Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellant, Mark Tinsley. Jennifer F. Noe, Ashland City, Tennessee, for the appellee, Suzanne Renee Tinsley. Judge: COTTRELL First Paragraph: Mother sought modification of child support and a judgment against Father for contempt in the form of retroactive child support due to his failure to supply her with a yearly statement of his income as required by the final divorce decree. The trial court ordered a modification of the prospective child support, determining the amount of the obligation by averaging Father's fluctuating income for the three years prior to the hearing and awarded Mother a $54,192.00 judgment for retroactive child support during the five years that Father failed to provide his income statements to Mother. Because the trial court correctly calculated the prospective child support obligation, we affirm the amount of Father's monthly obligation in the amount of $1,300.00 from the date the petition was filed. However, because the trial court has no authority to award retroactive child support modification, we vacate the $54,192.00 judgment for retroactive child support. We remand the case for further proceedings to set reasonable attorney fees. http://www.tba.org/tba_files/TCA/TinsleyM.wpd JAMES CARTER v. FRED J. RANEY, WARDEN Court:TCCA Attorneys: James Carter, Tiptonville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W. Turner and Marcia Fogle, Assistant Attorneys General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Petitioner was denied habeas corpus relief by the trial court. He now appeals, claiming the trial court erred in failing to hold an evidentiary hearing and in failing to appoint counsel to assist him with his habeas corpus claim. We affirm the denial of habeas corpus relief. http://www.tba.org/tba_files/TCCA/CarterJ.wpd STATE OF TENNESSEE v. WOODSON CARTER CRINER Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and J. Thomas Caldwell, Assistant District Attorney General, for the appellant, State of Tennessee. J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Woodson Carter Criner. Judge: TIPTON First Paragraph: The defendant, Woodson Carter Criner, was convicted in the Lauderdale County Circuit Court of driving under the influence (DUI) and received a sentence of eleven months, twenty-nine days to be suspended after serving one hundred twenty days in jail and a fine of one thousand one hundred dollars. The state appeals, claiming that the defendant's DUI sentence is illegal because the defendant was convicted of felony DUI. Although we hold that the trial court could sentence the defendant to less than one year for a Class E felony, we remand the case to the trial court to clarify whether the defendant was convicted of felony or misdemeanor DUI, review the defendant's sentence, and reenter the judgment. http://www.tba.org/tba_files/TCCA/criner.wpd REIKO NOLEN v. STATE OF TENNESSEE Court:TCCA Attorneys: Reiko Nolen, Clifton, Tennessee, Pro Se. Michael E. Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: Reiko Nolen, Clifton, Tennessee, Pro Se. Michael E. Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. http://www.tba.org/tba_files/TCCA/nolenr.wpd EDDIE J. PHIFER v. TENNESSEE BOARD OF PAROLE, et al. Court:TCCA Attorneys: Eddie J. Phifer, Crestview, Florida, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Pamela S. Lorch, Assistant Attorney General, for the appellees, Tennessee Board of Parole, et al. Judge: COTTRELL First Paragraph: This is a pro se appeal from a denial of parole. Mr. Phifer alleges several problems surrounding his parole hearing that he claims violate his due process and equal protection rights and violate the ex post facto constitutional prohibition. Because a prisoner has no liberty interest in release on parole before the expiration of his sentence, due process protections do not attach to parole determinations. Because at the time of Mr. Phifer's crime and conviction, the law regarding parole gave total discretion to the Board and authorized denial if the Board found that parole would depreciate the seriousness of the crime committed, changes in Board procedure do not violate ex post facto prohibitions. Because the Board has provided a rational basis for denying in-person interviews for prisoners housed out of state, no equal protection violation was shown. Consequently, we affirm the trial court's dismissal of the petition for failure to state a claim upon which relief may be granted. http://www.tba.org/tba_files/TCCA/Reed.wpd STATE OF TENNESSEE v. RICKIE REED Court:TCCA Attorneys: Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellee, Rickie Reed. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Paul F. Goodman and Mike Davis, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Rickie Reed, was convicted by a jury in the Shelby County Criminal Court of one count of second degree murder, one count of attempted second degree murder, and one count of reckless aggravated assault. The trial court merged the reckless aggravated assault conviction into the attempted second degree murder conviction. Following a sentencing hearing, the trial court imposed a sentence of twenty-three years incarceration in the Tennessee Department of Correction for the second degree murder conviction and a sentence of twelve years incarceration for the attempted second degree murder conviction, with the sentences to be served consecutively. In this appeal of right, the appellant alleges that the evidence was not sufficient to support his convictions of second degree murder and attempted second degree murder. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/Reed.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 |
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