Opinion Flash

September 20, 2004
Volume 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):
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
07 New Opinion(s) from the Tennessee Court of Appeals
07 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

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.

Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


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!
Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address.

GET A FULL-TEXT COPY OF AN OPINION!
See the intrsuctions at the beginning of this edition of Opinion Flash.

JOIN THE TENNESSEE BAR ASSOCIATION!
While Opinion Flash is a free service of the Tennessee Bar Association, you must be a member of the Tennessee Bar Association in order to access the full text of the opinions or enjoy the many other features of TBALink.

To join the TBA go to: http://www.tba.org/join_bar.mgi

SUBSCRIBE TO OPINION FLASH!
Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! Sign up for text or HTML version.

Visit the TBALink web site at: http://www.tba.org/op-flash.mgi

UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT!

But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi


HomeContact UsPageFinderWhat's NewHelp
© Copyright 2004 Tennessee Bar Association