Opinion FlashJuly 27, 2004Volume 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):
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 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 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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