Opinion FlashSeptember 20, 2004Volume 10 — Number 181 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 KATHRYN MORRIS BROWN and SWANN BROWN JAFFURS v. JUAN F. GUTIERREZ, WILLIAM E. KESSLER, DONALD J. VERNINE, each individually and d/b/a GKV LEASING, A Tennessee General Partnership Court:TCA Attorneys: Keith McCord, Knoxville, Tennessee, for Appellants. Lewis S. Howard, Jr., Knoxville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: In this Declaratory Judgment action, the Trial Court established the purchase price of property pursuant to a right of first refusal, awarded interest and denied a request for attorney's fees. On appeal by Seller, we Affirm. http://www.tba.org/tba_files/TCA/brownkatm.wpd MARY E. FOSSETT, ET AL. v. DOROTHY GRAY, ET AL. Court:TCA Attorneys: John W. Harris, Jr., Intervening Defendant/Appellant, Pro Se James F. Schaeffer, Jr., of Memphis, For Appellees, Mary Fossett and James F. Schaeffer, Sr. Randall J. Fishman, of Memphis, For Appellee, American Logistical Properties, Inc. Judge: CRAWFORD First Paragraph: Numerous heirs to property in Fayette County sought to sell two parcels of land for partition. Defendants/Appellees opposed the partition of one of the tracts. The trial court ordered that both tracts be sold for partition by auction, which was held on September 30, 2000. During the pendency of the partition suit, an investor bought the fractional interests in the property from numerous heirs, and intervened as a defendant in the case. The interest of the intervening defendant was foreclosed upon by the individual who had loaned him funds to purchase the fractional interests in the land. After the foreclosure, first intervening defendant brought a cross-claim against second intervening defendant/appellant. The trial court entered a judgment against second intervening defendant for the amount of overbid at foreclosure, $150,000. Second intervening defendant/appellant appeals and also appeals the final judgment in the partition case. We affirm in part, reverse in part, and remand. http://www.tba.org/tba_files/TCA/fossettmarye.wpd TERESA LYNN (HURST) FUGATE v. WILLIAM KENDRED FUGATE, III
Court:TCA
Attorneys:
J. Arnold Fitzgerald, Dayton, for the Appellant, Teresa Lynn (Hurst)
Fugate.
Marsha G. Smith, Chattanooga, for the Appellee, William Kendred
Fugate, III.
Judge: LEE
First Paragraph:
In this divorce case, Teresa Lynn (Hurst) Fugate ("Wife") appeals the
trial court's decision to set aside the parties' marital dissolution
agreement (MDA) and a quitclaim deed to the marital residence executed
by the Husband shortly after the parties separated. The trial court
found the residence to be marital property and equally divided the
equity in the property between the parties. Wife argues that the
trial court should have found the residence to be a gift from husband,
and thus separate property, and that the trial court erred by not
enforcing the quitclaim deed. Wife also appeals the trial court's
award of $187.00 in attorney fees to Husband. We affirm the trial
court's judgment in all respects.
http://www.tba.org/tba_files/TCA/fugateteresal.wpd
KAREN B. GOLIGHTLY v. GARY KEVIN GOLIGHTLY Court:TCA Attorneys: Craig B. Flood, Memphis, TN, for Appellant Steven M. Markowitz, Memphis, TN, for Appellee Judge: HIGHERS First Paragraph: This case involves a child custody dispute between the parents of two minor children. Following a bench trial, the trial court granted the parties an absolute divorce and designated the mother as the primary residential parent. In addition, the court below awarded the parties equal parenting time and provided for an alternating visitation schedule in the Permanent Parenting Plan. The mother subsequently filed a motion requesting the trial court to reconsider the custody arrangement, which the trial court denied. The mother filed this appeal contesting the determination of custody by the Circuit Court of Shelby County. For the reasons stated below, we affirm the decision of the circuit court. http://www.tba.org/tba_files/TCA/golightlykarenb.wpd HOLLI THACKER HANEY, ET AL. v. BRADLEY COUNTY BOARD OF EDUCATION, ET
AL.
Court:TCA
Attorneys:
Lynn Perry, Cleveland, Tennessee, for the Appellant Holli Thacker
Haney, individually and as Administratrix of the Estate of Maylyn
Thacker and the Estate of Carson Thacker.
Charles W. Cagle, Robert G. Wheeler, Jr., and Deb A. Smith, Nashville,
Tennessee, for the Appellee Bradley County Board of Education.
Judge: SWINEY
First Paragraph:
Holli Thacker Haney ("Plaintiff") had two children who attended
Michigan Avenue Elementary School (the "School") in Bradley County.
Plaintiff's husband, Tracy Thacker ("Thacker"), was not the biological
father of the oldest child, but he was the biological father of the
youngest child. Thacker filed for divorce, and he and Plaintiff were
in sharp disagreement over custody matters. Apparently believing he
was going to lose on the custody issues, on the morning of December
12, 2000, Thacker went to the School and signed out both children.
The School required Thacker to provide a written explanation as to why
the children were being signed out. Thacker wrote "Keeping Promise by
Mother" and "Pay Back" as his reasons for signing out the children.
School employees did not read what Thacker had written prior to
allowing him to leave the premises with the children. Tragically,
Thacker then murdered both young children. Plaintiff sued the Bradley
County Board of Education asserting claims of negligence and
negligence per se based on the School's allowing Thacker to sign out
the children and leave the School with them on December 12. The Trial
Court granted the Board of Education's motion for summary judgment.
We affirm in part, reverse in part, and remand for further
proceedings.
http://www.tba.org/tba_files/TCA/haneyhollit.wpd
JAXIE RAYMOND JONES v. JOE C. CRUMLEY, JR.
Court:TCA
Attorneys:
Paul G. Summers, Attorney General and Reporter, and Richard H.
Dunavant, Assitant Attorney General, Nashville, Tennessee, for the
appellant, Joe C. Crumley, Jr.
Jaxie Raymond Jones, appellee, Mountain City, Tennessee, Pro Se.
Judge: SUSANO
First Paragraph:
Jaxie Raymond Jones ("the petitioner"), a state prisoner incarcerated
at the Northeast Correctional Complex in Johnson County, filed a
petition against Joe C. Crumley, Jr., District Attorney General for
the First Judicial District of Tennessee ("the respondent"), seeking
the contents of files in the respondent's possession pertaining to
"Washington County Criminal Court Case No. 14189." The trial court
ordered that the documents be produced pursuant to the provisions of
Tenn. Code Ann. S 10-7-503(a)(1999). Respondent appeals. We affirm.
http://www.tba.org/tba_files/TCA/jonesjaxier.wpd
ROBERT WALKER, ET AL. v. MICHAEL S. MULLINS, ET AL. Court:TCA Attorneys: Tracy B. Walsh, Southaven, Mississippi, for the appellants, Michael S. Mullins and Stephanie J. Mullins. William S. Rhea, Somerville, Tennessee, for the appellees, Robert Walker, Blain Walker, Paul Walker and Russell Walker. Judge: FARMER First Paragraph: This appeal is from the chancellor's decision in a property line dispute. In the absence of a transcript or statement of the evidence, we affirm. http://www.tba.org/tba_files/TCA/walkerrobert.wpd STATE OF TENNESSEE v. CHRISTOPHER T. COCHRAN Court:TCCA Attorneys: Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Eric D. Christiansen, Assistant District Attorney General, for the appellant, State of Tennessee. Roger A. Woolsey, Greeneville, Tennessee, for the appellee, Christopher T. Cochran. Judge: GLENN First Paragraph: The defendant pled guilty in 2000 to vehicular homicide and the judgment ordered, in addition to setting the sentence at five years and the restitution amount, that he forfeit his driver's license for five years. Following his release from incarceration, he petitioned the trial court to reduce the period of suspension of his license to three years. The trial court granted this petition, and the State appealed, arguing that the court was without authority to alter the license revocation period. Upon our review, we find that the judgment, which was the basis for the defendant's request that the trial court reduce the suspension period to three years and the State's appeal of the court order doing so, had been superseded by an amended judgment entered several days after the first which corrected the listing of the statute for the defendant's conviction offense but omitted setting a period of suspension of his driver's license. Accordingly, we vacate the order of the trial court reducing the suspension period to three years and remand for entry of a second corrected judgment, this one to set a period for the license revocation. http://www.tba.org/tba_files/TCCA/cochranchrist.wpd STATE OF TENNESSEE v. KATHY E. COOPER Court:TCCA Attorneys: Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender; and Stacey Nordquist, Assistant District Public Defender, Maryville, Tennessee (at trial), for the appellant, Kathy E. Cooper. Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Robert L. Headrick, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant appeals her resentencing following the revocation of her eight-year community corrections sentence for vehicular homicide, a Class B felony, arguing that the trial court erred in ordering her to serve twelve years in the Department of Correction, following her arrest for DUI. Based on the subsequent decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), we remand this matter to the trial court for reconsideration in light of its holding. http://www.tba.org/tba_files/TCCA/cooperkathye.wpd STATE OF TENNESSEE v. RAYMOND K. McCRARY Court:TCCA Attorneys: David Crockett and Jerome Cochran, Elizabethton, Tennessee, for the appellant, Raymond K. McCrary. Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Joe C. Crumley, Jr., District Attorney General; and Steven R. Finney, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Raymond K. McCrary, pled guilty to one count of manufacture of a Schedule VI controlled substance, marijuana, a Class E felony, and one count of possession for resale of a Schedule VI controlled substance, marijuana, also a Class E felony. He was sentenced as a Range I, standard offender to one year in the Department of Correction on each count to be served concurrently. On appeal, the defendant argues that the trial court abused its discretion in denying alternative sentencing. Based on our review, we affirm the length of the sentence but modify it to reflect a period of incarceration of sixty days, with the remainder to be served on probation with appropriate conditions to be established by the trial court. http://www.tba.org/tba_files/TCCA/mccraryraymondk.wpd ANTHONY RAINER v. DAVID MILLS, WARDEN Court:TCCA Attorneys: Anthony Rainer, pro se. Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court's denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/rainerant.wpd SEANISE SHAW v. STATE OF TENNESSEE Court:TCCA Attorneys: William D. Massey, Memphis, Tennessee (at trial); and C. Michael Robbins, Memphis, Tennessee (at trial and on appeal), for the Appellant, Seanise Shaw. Paul G. Summers, Attorney General & Reporter; Richard H. Dunavant, Assistant Attorney General; William L. Gibbons, District Attorney General; and Julie Mosey, Assistant District Attorney General; for the Appellee, State of Tennessee. Judge: WITT First Paragraph: Seanise Shaw, the petitioner, appeals the Shelby County Criminal Court's denial of her petition for post-conviction relief. The lower court found her allegations of ineffective assistance of counsel unsupported by the evidence and denied relief. Because we are unpersuaded of error, we affirm. http://www.tba.org/tba_files/TCCA/shawseanise.wpd JAMES THOMAS v. DAVID MILLS, WARDEN Court:TCCA Attorneys: James Thomas, pro se. Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee Judge: HAYES First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court's denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/thomasjam.wpd ROBIN McNEAL VANHOOSE v. STATE OF TENNESSEE Court:TCCA Attorneys: Robin McNeal Vanhoose, CCA/SCCF, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G. Robert Radford, District Attorney General; and John W. Overton, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Robin McNeal Vanhoose, appeals the trial court's dismissal of his motion to correct illegal sentence. The State filed a motion to dismiss the appeal or, in the alternative, to affirm the dismissal by the trial court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Upon reviewing the record, the defendant's brief, and the State's motion and brief, we affirm the trial court's dismissal of the defendant's motion to correct illegal sentence. http://www.tba.org/tba_files/TCCA/vanhoosrmc.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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