Opinion Flash

October 19, 2004
Volume 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):
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
02 New Opinion(s) from the Tennessee Court of Appeals
19 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


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

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