Opinion FlashSeptember 23, 2003
Volume 9 Number 173
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):
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Howard H. Vogel
BETTY J. BRYANT v. ROY C. BRYANT Court:TCA Attorneys: Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Betty J. Bryant. David H. Stanifer, Tazewell, Tennessee, for the appellee, Roy C. Bryant. Judge: SUSANO First Paragraph: In this divorce case, the trial court dissolved a marriage of over 36 years; divided the parties' marital property; and denied the request of Betty J. Bryant ("Wife") for attorney's fees. Wife appeals, arguing that the division of marital property is not equitable. Her argument is predicated primarily upon the assertion that her spouse, Roy C. Bryant ("Husband"), dissipated the marital assets as a result of his gambling activities. In addition, Wife contends that the trial court erred in refusing to award her attorney's fees. We affirm. http://www.tba.org/tba_files/TCA/bryantb.wpd
GEORGE R. PHILLIPS v. PAUL H. SKELTON, JR. Court:TCA Attorneys: Terry Risner, Mt. Carmel, Tennessee, for the appellant, Paul H. Skelton. Douglas T. Jenkins, Rogersville, Tennessee, for the appellee, George R. Phillips. Judge: SUSANO First Paragraph: When Joseph Housewright died in 1898, his seven children orally agreed to a division of their father's real property. No deeds were executed to memorialize their agreement. Some 103 years later, George R. Phillips, a great-grandson of Housewright, sued Paul H. Skelton, Jr. - who is not a descendent of Housewright - claiming that Skelton was interfering with Phillips' quiet possession of his fee simple ownership of 9.96 acres of land in Hawkins County, an interest Phillips claims is traceable to Housewright's estate. Skelton answered and filed a counterclaim, in which he alleged that he, along with others - not including Phillips - owned the subject property. The trial court found that the property belonged to Phillips. Skelton appeals, arguing that the trial court erred (1) in holding that Phillips, rather than Skelton, "holds valid assurance and color of title to the subject real property" and (2) in holding that Skelton failed to establish a defensible title to the property. We affirm. http://www.tba.org/tba_files/TCA/phillips.wpd
ARMAND M. SALVATORE v. BARON CORPORATION, ET AL. Court:TCA Attorneys: Joseph J. Levitt, Jr., Knoxville, Tennessee, for the appellant, Armand M. Salvatore. R. Louis Crossley, Jr., Knoxville, Tennessee, for the appellees, Baron Corporation, CZ-Lebanon Associates, L.P., CZ-Bristol Associates I, L.P., CZ-Bristol Associates II, L.P., CZ-Lenoir City Associates, L.P., CZ-Brighton Associates, L.P., CZ-Morristown Associates, L.P., Cullom Properties, Inc. and Miles E. Cullom, Jr. Judge: SUSANO First Paragraph: Following the termination of his employment, Armand M. Salvatore sued two corporations and six limited partnerships, as well as Miles E. Cullom, Jr., who was a stockholder, director, and president of the corporations, and who was also a limited partner in each of the limited partnerships, for salary, fees, and commissions allegedly due him under the terms of a written employment agreement. He also sued the defendant Cullom for statutory treble damages in tort for interference with his employment contract. Following a bench trial, the court below held that Salvatore, at the time of his termination, was employed under a renewed one-year employment contract. Pursuant to this holding, the trial court awarded him the remainder of his base salary for the second year of his employment. Salvatore appeals, contending that the trial court erred when it failed to award him salary for two additional years, fees, commissions, and treble damages. The defendants, on the other hand, claim that Salvatore is not entitled to the salary awarded to him by the trial court. We modify the trial court's judgment to increase Salvatore's award by $20,500. As modified, the judgment is affirmed. http://www.tba.org/tba_files/TCA/salvato.wpd
ALDEN JOE DANIEL, JR. v. STATE OF TENNESSEE Court:TCCA Attorneys: Cynthia Fort, Nashville, Tennessee, and Alden Joe Daniel, Jr., pro se, Wartburg, Tennessee for the appellant, Alden Joe Daniel, Jr. Paul G. Summers, Attorney General and Reporter, Braden H. Boucek, Assistant Attorney General, Jerry N. Estes, District Attorney General, and Joseph Hoffer, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Alden Joe Daniel, Jr., appeals the trial court's denial of his petition for post-conviction relief. In his initial brief filed with the assistance of retained counsel, Petitioner argues that the trial court erred in finding that Petitioner's plea of guilty was voluntary and knowing and in finding that Petitioner's trial counsel rendered effective assistance of counsel during the interval between Petitioner's first and second trial and during plea negotiations. After the filing of his initial brief, this Court granted Petitioner's counsel leave to withdraw as counsel and denied Petitioner's motion for the appointment of substitute counsel. Thereafter, Petitioner filed a motion to reconsider post- judgment facts pursuant to Rule 14 of the Tennessee Rules of Appellate Procedure and a pro se supplemental brief. In his brief, Petitioner alleges that his post-conviction counsel rendered ineffective assistance of counsel and that the trial court based its findings on erroneous facts. Petitioner requests that this Court remand the matter to the trial court for an evidentiary hearing as to factual matters not presented at Petitioner's post-conviction proceeding. For the reasons discussed herein, we deny Petitioner's motion to consider post-judgment facts and affirm the trial court's dismissal of the petition for post-conviction relief. http://www.tba.org/tba_files/TCCA/danielaj.wpd
ROGER HARRIS v. STATE OF TENNESSEE Court:TCCA Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: This case has been returned to active status for consideration of the post conviction issues, after the supreme court denied the petitioner's delayed appeal under Tennessee Supreme Court Rule. 28 S (9)(D). The petitioner appeals from the denial of his petition for post-conviction relief. The petitioner contends he received ineffective assistance of counsel at trial and on appeal. We affirm the post-conviction court's denial of post-conviction relief. http://www.tba.org/tba_files/TCCA/harrisr.wpd
STATE OF TENNESSEE v. JAMES L. JORDAN Court:TCCA Attorneys: Melanie R.Snipes, Chattanooga, Tennessee, for the appellant, James L. Jordan. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Bill Cox, District Attorney General; and Christopher D. Poole, Assistant Distict Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, James L. Jordan, was convicted by a jury of three counts of aggravated assault, a Class C felony. See Tenn. Code Ann. S 39-13-102(d)(1). At the sentencing hearing, the trial court, acting as thirteenth juror, dismissed one of the convictions. For each of the other two convictions, the court sentenced the Defendant as a Range I offender to concurrent terms of six years. The Defendant failed to execute an appeal of his convictions. He subsequently filed a petition for post- conviction relief. After a hearing, the trial court dismissed the Defendant's petition but granted the Defendant a delayed appeal. In this delayed appeal, the Defendant raises four issues: (1) whether the evidence was legally sufficient to support his two convictions for aggravated assault; (2) whether the Defendant was adequately advised of his right to counsel before waiving his right to a preliminary hearing; (3) whether the trial court erred by admitting into evidence a handgun found at the Defendant's residence; and (4) whether the trial court properly sentenced the Defendant. We affirm the judgments of the trial court. http://www.tba.org/tba_files/TCCA/jordanjl.wpd
STATE OF TENNESSEE v. JAYE WESLEY MITTS Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; William Paul Phillips, District Attorney General; and Michael O. Ripley, Assistant District Attorney General, for the appellant, State of Tennessee. Lee Asbury, Jacksboro, Tennessee, for the appellee, Jaye Wesley Mitts. Judge: WILLIAMS First Paragraph: The State appeals contending the trial court erred in allowing the defendant to receive jail credit from an unrelated charge against the 150-day mandatory minimum sentence he received in his plea to sixth offense D.U.I. Also, the State alleges error in the trial court modifying the defendant's payment plan for paying fines and costs to less than the defendant agreed to pay when the trial court accepted the defendant's plea agreement. We conclude it was error to allow this defendant to receive any jail credit toward his mandatory minimum of 150 days for his sixth D.U.I. offense where the credit accumulated on an unrelated charge. We further conclude the trial court was within its discretion to modify the payment plan, not the overall fine, upon determining the defendant did not have the ability to pay. We reverse in part and affirm in part the judgments of the trial court and remand for entry of a corrected judgment consistent with this opinion. http://www.tba.org/tba_files/TCCA/mittsjw.wpd
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