Opinion Flash

July 27, 2004
Volume 10 — Number 143

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):
00 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
05 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 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


ALVIN FREEMAN, ET AL. v. JANICE STEWART, ET AL.

Court:TCA

Attorneys:                          

Timothy R. Wilkerson, Kingsport, Tennessee, for the Appellants Janice
and Ed Stewart.

Kerry A. Musick, Blountville, Tennessee, for the Appellees Alvin and
Dinah Freeman, Bill and Kathy Moore, Ray and Shirley Rose, Troy and
Lottie Williams, and Jack and Mae Smith.

Judge: SWINEY

First Paragraph:

Janice K. Stewart ("Mrs. Stewart") was the record owner of a parcel of
real property located in Tall Oaks Court subdivision when this
litigation began.  Several of Mrs. Stewart's neighbors filed this suit
claiming Mrs. Stewart was in violation of the subdivision restrictions
by having a freestanding metal garage and a separate large wooden
structure on her property.  The Trial Court agreed and gave Mrs.
Stewart the option of keeping one of the structures as a garage and
ordering her to remove the other structure.  Mrs. Stewart subsequently
transferred the property to her husband, Ed Stewart ("Mr. Stewart"),
who then was added as a defendant.  The neighbors filed a petition for
contempt against both Mr. and Mrs Stewart when they continued to have
both a freestanding metal garage and the wooden structure on their
property.  A hearing was held on the petition for contempt and the
Trial Court held Mrs. Stewart in contempt and found the wooden
structure still to be in violation of the subdivision restrictions. 
We affirm the Trial Court's finding that the wooden structure is in
violation of the subdivision restrictions.  We vacate the finding of
contempt and remand for further proceedings on the claim of contempt
as to Mrs. Stewart.

http://www.tba.org/tba_files/TCA/freemanalv.wpd

IN RE: NANCY JANE SHIPE, Daniel P. McClure, (Conservator of Estate), 
v. FAE N. SHIPE, (Conservator of the Person), and NANCY JANE SHIPE
(Ward)

Court:TCA

Attorneys:                          

Kenneth Clark Hood, Greeneville, Tennessee, for Appellant, Daniel P.
McClure.

Deborah F. Roberts, Greeneville, Tennessee, for Appellee, Fae N.
Shipe.

Judge: FRANKS

First Paragraph:

Competing Petitions between The Conservator of the Estate and the
Conservator of the Person resulted in the Trial Court altering the
Ward's living arrangements.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/shipenanj.wpd

SULLIVAN COUNTY, TENNESSEE and the SULLIVAN COUNTY BUILDING
COMMISSIONER v. JOE ELLIS LYON

Court:TCA

Attorneys:                          

Cheryl C. Rollins, Knoxville, Tennessee, for Appellant.

Daniel P. Street, Blountville, Tennessee, for Appellees.

Judge: FRANKS

First Paragraph:

Appellant, pro se, employed counsel during appeal, but appeal is
premature.  We dismiss appeal and remand.

http://www.tba.org/tba_files/TCA/sullivancty.wpd

MARY JEAN UPRIGHT v. RICHARD UPRIGHT

Court:TCA

Attorneys:                          

C. timothy Crocker and Michael A. Carter of Milan for Appellant,
Richard Upright

WM Ken Seaton of Selmer for Appellee, Mary Jean Upright

Judge: CRAWFORD

First Paragraph:

Husband appeals trial court's final decree of divorce pertaining to
division of marital property.  We affirm.

http://www.tba.org/tba_files/TCA/uprightmj.wpd

V.D., ET AL v. N.M.B.

Court:TCA

Attorneys:                          

Kelli Barr Summers, Brentwood, Tennessee, for the appellant, N.M.B.

Rosemary E. Phillips, Goodlettsville, Tennessee, for the appellees,
V.D. and M.S.

Judge: COTTRELL

First Paragraph:

The paternal grandmother of an eight year old boy, who had had custody
of the child for the most recent four years of his life, filed a
petition to terminate the parental rights of his mother so the
grandmother could adopt him.  The trial court granted the petition,
finding clear and convincing evidence of several grounds for
termination and that such a step was in the child's best interest.  We
affirm the termination on the ground of abandonment.

http://www.tba.org/tba_files/TCA/vdnmb.wpd

ROBERT L. CLARK, JR. v. STATE OF TENNESSEE
CORRECTED OPINION

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; J. Scott McCluen, District Attorney
General; and Roger Delp, Assistant District Attorney General, for the
appellant, State of Tennessee.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II,
Assistant Public Defender, for the appellee, Robert L. Clark, Jr.

Judge: WILLIAMS

First Paragraph:

The petitioner's judgment forms entered May 29, 1996, reflect that he
pled guilty to second degree murder, a Class A felony, committed on
November 18, 1994, and possession of cocaine greater than one-half
gram with intent to sell, a Class B felony, committed on October 3,
1994.  The trial court sentenced him to twenty-five years on the
murder conviction and twelve years on the cocaine conviction.  The
judgments ordered the sentences to be served concurrently to each
other but consecutively to sentences for other convictions listed on
the judgment forms.  The petitioner filed a petition for writ of
habeas corpus relief claiming that his sentences are void because they
are in direct contravention of statutory law requiring them to be
served consecutively rather than concurrently.  The trial court
granted habeas corpus relief, and the State appealed.  We hold that
the testimony presented by this petitioner was outside the record of
the underlying convictions and proceedings and therefore should not
have been considered by the trial court.  We reverse and remand this
case for a determination as to whether the record of the underlying
convictions and proceedings constitutes satisfactory proof that the
petitioner was on bail for the Class B cocaine offense when the second
degree murder was committed.

CORRECTED OPINION
http://www.tba.org/tba_files/TCCA/clarkrljr.wpd

STATE OF TENNESSEE  v.  JAMES ALLEN MICHAELS

Court:TCCA

Attorneys:                          

Mark E. Stephens, District Public Defender; Robert C. Edwards,
Assistant Public Defender, for the appellant, James Allen Michaels.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman
McIntire, Assistant Attorney General; Randall E. Nichols, District
Attorney General; Jo Helm, Assistant District Attorney General, for
the appellee, the State of Tennessee.

Judge: WOODALL

First Paragraph:

Defendant, James Allen Michaels, pled guilty to two counts of robbery,
both Class C felonies.  Defendant was originally indicted on charges
of aggravated robbery.  For his convictions, Defendant was sentenced
as a Range II offender to eight years and three years as a Range I
standard offender, to be served consecutively.  The length of the
sentences imposed was agreed upon in the negotiated plea agreement. 
Defendant appeals the trial court's denial of probation.  After
reviewing the record on appeal, we affirm the judgments of the trial
court.

http://www.tba.org/tba_files/TCCA/michaelsjamesal.wpd

Judge's Authority to Order a DUI Offender to Attend an Exclusive
State-Certified DUI School

Date: July 26, 2004

Opinion Number: 04-122

http://www.tba.org/tba_files/AG/2004/op122.pdf

Adjustments in Basic Education Program funds based on transfer of
school or annexation of school by another LEA.

Date: July 26, 2004

Opinion Number: 04-123                         

http://www.tba.org/tba_files/AG/2004/op123.pdf

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