Opinion FlashOctober 19, 2004Volume 10 — Number 202 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 KENNETH STINNETT, ET AL v. DUDLEY D. JOHNSTON, ET AL. Court:TCA Attorneys: Lynne Denell Swafford, Pikeville, Tennessee, for the Appellants, Dudley D. Johnston and Robert E. Johnston. J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellee, Kenneth Stinnett and wife, Rebecca S. Stinnett. Judge: LEE First Paragraph: This appeal involves an acreage deficiency in the conveyance of a subdivision lot. Both parties to the transaction believed that the lot contained 2.4 acres. However, a survey after the sale determined that the lot contained only .93 acres. The parties did not learn of the acreage discrepancy until after the buyer had constructed a house foundation which extended approximately 15 feet across the boundary line onto a neighbor's property. The trial court determined that there had been a mutual mistake as to the quantity of land conveyed and ordered a recission of the transaction. The trial court awarded the buyer damages in the amount of $17,275.60 representing a refund of the purchase price, reimbursement for grading, labor, construction materials, and closing costs for the house construction loan. The seller appealed. We affirm the trial court's decision to rescind the transaction based upon mutual mistake, but modify the award of damages. http://www.tba.org/tba_files/TCA/stinneken.wpd RICKY DALE TWEED, ET AL. v. JOHN A. KISER, ET AL.
Court:TCA
Attorneys:
James D. Culp, Johnson City, Tennessee, for the Appellants John A.
Kiser and Betty Downs Kiser.
Bob McD. Green, Johnson City, Tennessee, for the Appellees Ricky Dale
Tweed and Patricia Ann Tweed.
Judge: SWINEY
First Paragraph:
Ricky and Patricia Tweed ("Plaintiffs") agreed to purchase a house
owned by John and Betty Kiser ("Defendants") for $145,000. Defendants
owned another house in which they lived and, in a separate agreement,
Plaintiff Ricky Tweed ("Tweed") agreed to build a sunroom and garage
onto that house. Tweed and Defendants agreed that the cost of Tweed's
labor would be equivalent to the cost of the materials which were
estimated to be $21,000, and that Tweed would be paid for his labor by
deducting the total labor cost from the purchase price of the house
that he and his wife were buying. After various disputes arose,
Plaintiffs sued seeking specific performance of the contracts. One of
the issues at trial was whether Tweed's claim for compensation was
limited by the Contractors Licensing Act of 1994 because he was an
unlicensed contractor. The Trial Court concluded Tweed's compensation
should be determined based on quantum meruit, and in so doing
concluded Plaintiffs were entitled to a credit against the purchase
price of the house in the amount of $21,806.62. In accordance with
the Contractors Licensing Act of 1994, we conclude Tweed's claim for
compensation is limited to his actual documented expenses proven by
clear and convincing evidence. Therefore, the Trial Court erred when
it concluded Tweed's compensation for building the sunroom and garage
should be determined by quantum meruit.
http://www.tba.org/tba_files/TCA/tweedrickd.wpd
GARY E. ALDRIDGE v. STATE OF TENNESSEE Court:TCCA Attorneys: Gary E. Aldridge, pro se, Clifton, Tennessee. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant has appealed the trial court's order summarily dismissing the appellant's petition for the writ of habeas corpus. In that petition the appellant alleges that the indictment which forms the basis of his convictions for aggravated kidnapping, three counts of aggravated rape, spousal rape, and two counts of assault, is void because the counts therein fail to allege sufficient facts to vest jurisdiction in the convicting court. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/aldridgegarye.wpd JAMES RAY BARTLETT V. STATE OF TENNESSEE Court:TCCA Attorneys: James Ray Bartlett, pro se, Clifton, Tennessee. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General, for the appellee, State of Tennessee. Judge: SMITH First Paragraph: The petitioner, James Ray Bartlett, appeals from the dismissal of his petition for the writ of habeas corpus. The state has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals. http://www.tba.org/tba_files/TCCA/bartlettjames.wpd BOBBY BROWN, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Bobby Brown, pro se. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The defendant, Bobby Brown, appeals the trial court's denial of his motion to award sentence credits. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court did not have jurisdiction to grant the relief requested and was, therefore, proper in denying the defendant's motion. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/brownbobby.wpd MICHAEL BROWN v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN Court:TCCA Attorneys: Michael Brown, Clifton, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee Judge: WOODALL First Paragraph: This matter was presented to the Court upon the motion of the State of Tennessee, pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/brownmichael.wpd MOSES COURY v. BRUCE WESTBROOKS, WARDEN Court:TCCA Attorneys: David A. Collins, Nashville, Tennessee, for the appellant, Moses Coury. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The petitioner, Moses Coury, filed an application for writ of habeas corpus or in the alternative a petition for post-conviction relief. The trial court dismissed the petition without a hearing, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/courymoses.wpd TERRANCE CROWDER v. STATE OF TENNESSEE Court:TCCA Attorneys: Kimberly Haas, for the appellant. Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Terrance Crowder, appeals the trial court's denial of his petition for post conviction relief. The Petitioner filed his petition outside the statute of limitations and tolling is not applicable. Additionally, petitioner's ineffective assistance of counsel claims must fail because petitioner did not prove that counsel's representation fell below the requisite standard. Accordingly, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/crowderterrance.wpd STATE OF TENNESSEE v. MARIA VICTORIA CRUZ Court:TCCA Attorneys: Maria Victoria Cruz, pro se. Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The appellant, Maria Victoria Cruz, appeals her conviction of speeding and 30 day suspended sentence and fine of fifty dollars. The State has filed a motion requesting that this Court affirm the trial court's judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. After a review of the record, this court determines that the State's motion should be granted. Appellant has failed to present an adequate record for review. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/cruzmariav.wpd SUSAN DAUGHERTY v. STATE OF TENNESSEE, CHERRY LINDAMOOD, WARDEN Court:TCCA Attorneys: Jack Howell Davis, Sr., Nashville, Tennessee, for the appellant, Susan Daugherty. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III., District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner has appealed the dismissal of her petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/daughertysusan.wpd JAMES DUBOSE v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN Court:TCCA Attorneys: James Dubose, Tiptonville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: This matter was presented to the Court upon the motion of the State of Tennessee, pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/dubosejames.wpd STATE OF TENNESSEE v. MARIO ESTRADA Court:TCCA Attorneys: Robin Farber, for the appellant, Mario Estrada. Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The appellant, Mario Estrada, appeals the trial court's denial of his motion to reduce his sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The State has filed a motion requesting that this Court dismiss the appeal or affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After a review of the record, this court determines that the State's motion should be granted. Appellant has failed to present an adequate record for review. Moreover, appellant has failed to show that the trial court abused its discretion in denying the motion to modify appellant's sentence. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/estradamario.wpd ROBERT K. HOLLOWAY v. STATE OF TENNESSEE Court:TCCA Attorneys: Robert K. Holloway, Clifton, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; and Dan M. Alsobrooks, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: This matter was presented to the Court upon the motion of the State of Tennessee, pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/hollowayrobertk.wpd EARLY H. MILES, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: Early H. Miles, pro se. Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, Early H. Miles, appeals the trial court's dismissal of his petition for post- conviction relief or in the alternative for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner filed his petition outside the statute of limitations for post-conviction purposes. The petition was not filed in the proper court for habeas corpus purposes, and the petitioner did not give any reason in the petition for not applying to the nearest court as required by law. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/milesearly.wpd STATE OF TENNESSEE v. ROBERT RAY MILLS Court:TCCA Attorneys: Robert Ray Mills, Petros, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; and Lawrence Ray Whitley, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: This matter was presented to the Court upon the motion of the State of Tennessee, pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/millsroberray.wpd STATE OF TENNESSEE v. AARON FREDERICK MULLINS Court:TCCA Attorneys: Collier W. Goodlett and Gregory D. Smith, Clarksville, Tennessee, for the appellant, Aaron Frederick Mullins. Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; John Carney, District Attorney General; and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Aaron Mullins, appeals from the trial court's order revoking his community corrections sentence and ordering him to serve the balance of his sentence in the Department of Correction. The State filed a motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/mullinsaaronf.wpd JAMES LEE PERRY, PRO SE v. STATE OF TENNESSEE Court:TCCA Attorneys: James Lee Perry, pro se. Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner, James Lee Perry, appeals the trial court's dismissal of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/perryjameslee.wpd LOUIS P. SKUFCA, JR. v. STATE OF TENNESSEE, KEVIN MYERS, WARDEN Court:TCCA Attorneys: Louis P. Skufca, Jr., Clifton, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; and T. Michael Bottoms, District Attorney General, for the appellee, State of Tennessee. Judge: WOODALL First Paragraph: Petitioner, Louis P. Skufca, Jr., appeals from the trial court's summary dismissal of his petition for writ of habeas corpus, without an evidentiary hearing. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/skufcalouisp.wpd STATE OF TENNESSEE v. WILLIAM GEORGE SOLLER Court:TCCA Attorneys: Richard L. Burnette, Knoxville, Tennessee; and Bryan E. Delius, Sevierville, Tennessee, for the Appellant, William George Soller. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Brent C. Cherry, Assistant Attorney General; Al Schmutzer, Jr., District Attorney General; and Joseph A. Baker, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: The Appellant, William G. Soller, appeals the denial of his petition for judicial diversion. Under the terms of a plea agreement, Soller pled guilty to aggravated burglary, aggravated assault, and resisting arrest and received an effective sentence of six years, with service of thirty days in the county jail. Following imposition of the agreed sentence, Soller moved for judicial diversion. At the scheduled hearing, the trial court ruled that Soller was statutorily ineligible, as he had previously been granted diversion in the state of Florida. This ruling is in conflict with our supreme court's holding in State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). Irrespective of the error, we conclude that the trial court was without authority to alter the terms of a negotiated plea agreement which was dispositive of all sentencing issues. See Tenn. R. Crim. P. 11(e)(1)(C). Nonetheless, because the sentences imposed embody the plea agreement of the parties, Soller's sentences are affirmed. http://www.tba.org/tba_files/TCCA/sollerwilliamgeo.wpd WILLIAM THOMAS UMFLEET v. STATE OF TENNESSEE Court:TCCA Attorneys: Mike J. Urquhart, Nashville, Tennessee, for the appellant, William Umfleet. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, District Attorney General; and Michael Rohling, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, William Thomas Umfleet, appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/umfleetwilliamt.wpd GARY WALLACE v. KEVIN MYERS, WARDEN Court:TCCA Attorneys: Gary Wallace, Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General; Mike Bottoms, District Attorney General; and P. Robin Dixon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WELLES First Paragraph: The Defendant, Gary Wallace, appeals from the trial court's dismissal of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim 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/wallacegary.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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