Opinion Flash

September 23, 2003
Volume 9 — Number 173

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
03 New Opinion(s) from the Tennessee Court of Appeals
04 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

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


BETTY J. BRYANT v. ROY C. BRYANT

Court:TCA

Attorneys:                          

Johnny V. Dunaway, LaFollette, Tennessee, for the appellant, Betty J.
Bryant.

David H. Stanifer, Tazewell, Tennessee, for the appellee, Roy C.
Bryant.

Judge: SUSANO

First Paragraph:

In this divorce case, the trial court dissolved a marriage of over 36
years; divided the parties' marital property; and denied the request
of Betty J. Bryant ("Wife") for attorney's fees.  Wife appeals,
arguing that the division of marital property is not equitable.  Her
argument is predicated primarily upon the assertion that her spouse,
Roy C. Bryant ("Husband"), dissipated the marital assets as a result
of his gambling activities.  In addition, Wife contends that the trial
court erred in refusing to award her attorney's fees.  We affirm.

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

GEORGE R. PHILLIPS v. PAUL H. SKELTON, JR.

Court:TCA

Attorneys:                          

Terry Risner, Mt. Carmel, Tennessee, for the appellant, Paul H.
Skelton.

Douglas T. Jenkins, Rogersville, Tennessee, for the appellee, George
R. Phillips.

Judge: SUSANO

First Paragraph:

When Joseph Housewright died in 1898, his seven children orally agreed
to a division of their father's real property.  No deeds were executed
to memorialize their agreement.  Some 103 years later, George R.
Phillips, a great-grandson of Housewright, sued Paul H. Skelton, Jr. -
who is not a descendent of Housewright - claiming that Skelton was
interfering with Phillips' quiet possession of his fee simple
ownership of 9.96 acres of land in Hawkins County, an interest
Phillips claims is traceable to Housewright's estate.  Skelton
answered and filed a counterclaim, in which he alleged that he, along
with others - not including Phillips - owned the subject property. The
trial court found that the property belonged to Phillips.  Skelton
appeals, arguing that the trial court erred (1) in holding that
Phillips, rather than Skelton, "holds valid assurance and color of
title to the subject real property" and (2) in holding that Skelton
failed to establish a defensible title to the property.  We affirm.

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

ARMAND M. SALVATORE v. BARON CORPORATION, ET AL.

Court:TCA

Attorneys:                          

Joseph J. Levitt, Jr., Knoxville, Tennessee, for the appellant, Armand
M. Salvatore.

R. Louis Crossley, Jr., Knoxville, Tennessee, for the appellees, Baron
Corporation, CZ-Lebanon Associates, L.P., CZ-Bristol Associates I,
L.P., CZ-Bristol Associates II, L.P., CZ-Lenoir City Associates, L.P.,
CZ-Brighton Associates, L.P., CZ-Morristown Associates, L.P., Cullom
Properties, Inc. and Miles E. Cullom, Jr.

Judge: SUSANO

First Paragraph:

Following the termination of his employment, Armand M. Salvatore sued
two corporations and six limited partnerships, as well as Miles E.
Cullom, Jr., who was a stockholder, director, and president of the
corporations, and who was also a limited partner in each of the
limited partnerships, for salary, fees, and commissions allegedly due
him under the terms of a written employment agreement.  He also sued
the defendant Cullom for statutory treble damages in tort for
interference with his employment contract.  Following a bench trial,
the court below held that Salvatore, at the time of his termination,
was employed under a renewed one-year employment contract.  Pursuant
to this holding, the trial court awarded him the remainder of his base
salary for the second year of his employment.  Salvatore appeals,
contending that the trial court erred when it failed to award him
salary for two additional years, fees, commissions, and treble
damages.  The defendants, on the other hand, claim that Salvatore is
not entitled to the salary awarded to him by the trial court.  We
modify the trial court's judgment to increase Salvatore's award by
$20,500.  As modified, the judgment is affirmed.

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

ALDEN JOE DANIEL, JR. v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Cynthia Fort, Nashville, Tennessee, and Alden Joe Daniel, Jr.,  pro
se, Wartburg, Tennessee for the appellant, Alden Joe Daniel, Jr.

Paul G. Summers, Attorney General and Reporter, Braden H. Boucek,
Assistant Attorney General, Jerry N. Estes, District Attorney General,
and Joseph Hoffer, Assistant District Attorney General, for the
appellee, State of Tennessee.

Judge: WOODALL

First Paragraph:

Petitioner, Alden Joe Daniel, Jr., appeals the trial court's denial of
his petition for post-conviction relief.  In his initial brief filed
with the assistance of retained counsel, Petitioner argues that the
trial court erred in finding that Petitioner's plea of guilty was
voluntary and knowing and in finding that Petitioner's trial counsel
rendered effective assistance of counsel during the interval between
Petitioner's first and second trial and during plea negotiations. 
After the filing of his initial brief, this Court granted Petitioner's
counsel leave to withdraw as counsel and denied Petitioner's motion
for the appointment of substitute counsel.  Thereafter, Petitioner
filed a motion to reconsider post- judgment facts pursuant to Rule 14
of the Tennessee Rules of Appellate Procedure and a pro se
supplemental brief.  In his brief, Petitioner alleges that his
post-conviction counsel rendered ineffective assistance of counsel and
that the trial court based its findings on erroneous facts. 
Petitioner requests that this Court remand the matter to the trial
court for an evidentiary hearing as to factual matters not presented
at Petitioner's post-conviction proceeding.  For the reasons discussed
herein, we deny Petitioner's motion to consider post-judgment facts
and affirm the trial court's dismissal of the petition for
post-conviction relief.

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

ROGER HARRIS v. STATE OF TENNESSEE

Court:TCCA

Attorneys:                          

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger
Harris.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General;  Joe C. Crumley, Jr., District Attorney
General; and Kenneth C. Baldwin, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

This case has been returned to active status for consideration of the
post conviction issues, after the supreme court denied the
petitioner's delayed appeal under Tennessee Supreme Court Rule. 28 S
(9)(D).  The petitioner appeals from the denial of his petition for
post-conviction relief.  The petitioner contends he received
ineffective assistance of counsel at trial and on appeal.  We affirm
the post-conviction court's denial of post-conviction relief.

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

STATE OF TENNESSEE v. JAMES L. JORDAN

Court:TCCA

Attorneys:                          

Melanie R.Snipes, Chattanooga, Tennessee, for the appellant, James L.
Jordan.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe,
Assistant Attorney General; Bill Cox, District Attorney General; and
Christopher D. Poole, Assistant Distict Attorney General, for the
appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, James L. Jordan, was convicted by a jury of three
counts of aggravated assault, a Class C felony.  See Tenn. Code Ann. S
39-13-102(d)(1).  At the sentencing hearing, the trial court, acting
as thirteenth juror, dismissed one of the convictions.  For each of
the other two convictions, the court sentenced the Defendant as a
Range I offender to concurrent terms of six years.  The Defendant
failed to execute an appeal of his convictions.  He subsequently filed
a petition for post- conviction relief.  After a hearing, the trial
court dismissed the Defendant's petition but granted the Defendant a
delayed appeal.  In this delayed appeal, the Defendant raises four
issues: (1) whether the evidence was legally sufficient to support his
two convictions for aggravated assault; (2) whether the Defendant was
adequately advised of his right to counsel before waiving his right to
a preliminary hearing; (3) whether the trial court erred by admitting
into evidence a handgun found at the Defendant's residence; and (4)
whether the trial court properly sentenced the Defendant.  We affirm
the judgments of the trial court.

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

STATE OF TENNESSEE v. JAYE WESLEY MITTS

Court:TCCA

Attorneys:                          

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Michael O. Ripley, Assistant District Attorney General,
for the appellant, State of Tennessee.

Lee Asbury, Jacksboro, Tennessee, for the appellee, Jaye Wesley Mitts.

Judge: WILLIAMS

First Paragraph:

The State appeals contending the trial court erred in allowing the
defendant to receive jail credit from an unrelated charge against the
150-day mandatory minimum sentence he received in his plea to sixth
offense D.U.I.  Also, the State alleges error in the trial court
modifying the defendant's payment plan for paying fines and costs to
less than the defendant agreed to pay when the trial court accepted
the defendant's plea agreement.  We conclude it was error to allow
this defendant to receive any jail credit toward his mandatory minimum
of 150 days for his sixth D.U.I. offense where the credit accumulated
on an unrelated charge.  We further conclude the trial court was
within its discretion to modify the payment plan, not the overall
fine, upon determining the defendant did not have the ability to pay. 
We reverse in part and affirm in part the judgments of the trial court
and remand for entry of a corrected judgment consistent with this
opinion.

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

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