Opinion Flash

November 1, 2002
Volume 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):
06 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
07 New Opinion(s) from the Tennessee Court of Appeals
05 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 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
							

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