Opinion Flash

December 1, 2003
Volume 9 — Number 218

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
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
05 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


SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_1201.wpd

MONTE BOUNDS, et al. v. ZELLA CUPP
(Corrects attorneys listed in Opinon Flash 11/25/2003)

Court:TCA

Attorneys:

James D. Hutchins, Dandridge, Tennessee, for the appellant, Zella
Cupp.

John M. Norris, Strawberry Plains, Tennessee, for the appellees, Monte
Bounds and wife, Pamela Bounds, and Lawrence R. Bozeman and wife,
Imogene Bozeman.

Judge: SUSANO

First Paragraph:

The appellees filed suit against the appellant, alleging that the
appellees, Lawrence R. Bozeman and wife, Imogene Bozeman ("the
appellees Bozeman"), owned a 12-foot wide easement accross the
property of the appellant.  The appellant filed an answer, relying
upon "the affirmative defense of abandonment plus adverse possession
by the [appellant]."  Following a plenary trial, the court below found
that the appellees Bozeman had an express easement across the property
of the appellant and that they "ha[d] not taken action of clear and
unmistakable character indicating an abandonment of the easement." 
The appellant contends on this appeal that the trial court erred in
failing to find abandonment of the easement.  Since there is no
transcript or statement of the evidence in the record before us, we
affirm the judgment of the trial court.

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

C & G SEEDS, INC. v. SAMMY TAYLOR

Court:TCA

Attorneys:

J. Branden Bellar, Carthage, Tennessee, for the appellant, C & G
Seeds, Inc.

Sharon Linville, Hartsville, Tennessee, for the appellee, Sammy
Taylor.                          

Judge: COTTRELL

First Paragraph:

A farming supply store brought suit against an account holder for
money due on an unpaid account.  The trial court found that the store
failed to prove any monies were owed.  The farming store appeals,
arguing that the evidence preponderates against the trial court's
decision.  We affirm the decision of the trial court.

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

JAMES CORBIN v. TOM LANGE COMPANY, INC.

Court:TCA

Attorneys:   

Frank J. Scanlon, Nashville, Tennessee, for appellant, Tom Lange
Company, Inc.

Kevin H. Sharp and Brad A. Lampley, Nashville, Tennessee, for
appellee, James Corbin.

Judge: KIRBY
 
First Paragraph:

This case involves a noncompetition agreement.  An employee signed a
noncompete agreement when he began working for an employer.  The
employee resigned and began working for a competitor of the employer. 
The employee sought a declaratory judgment that the noncompete
agreement was unenforceable.  Approximately eighteen months into the
two-year noncompetition period, the trial court issued a ruling that
the agreement was not enforceable.  The employer appeals.  We affirm,
finding that neither the training provided to the employee nor the
employee's relationship with the employer's customers created a
business interest that warranted the protection of a noncompetition
agreement.

http://www.tba.org/tba_files/TCA/corbinj1.wpd

STATE OF TENNESSEE v. ELIZABETH M. CLARK

Court:TCCA

Attorneys:

Mack Garner, District Public Defender, Maryville, Tennessee, for the
Appellant, Elizabeth M. Clark.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and
Edward P. Bailey, Jr., Assistant District Attorney General, for the
Appellee, State of Tennessee.

Judge: WITT

First Paragraph:

A  Blount County Circuit Court grand jury indicted defendant for Class
C felony theft of property valued at more than $10,000 but less than
$60,000.  See Tenn. Code Ann. S 39-14-103 (2003).  After the defendant
pleaded guilty and following a sentencing hearing, the trial court
imposed a six-year, Range I sentence and ordered her to serve 90 days
in the county jail, with eligibility for work release and with the
rest of her sentence to be served on supervised probation.  The
defendant was also required to pay restitution in the amount of
$54,264.15.  She now appeals the trial court's sentencing
determinations.  Finding no reversible error, we affirm the lower
court's judgment.

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

DAVID JONES v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Martha J. Yoakum, District Public Defender, and Daniel H. Korth,
Assistant Public Defender, for the appellant, David Jones.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William Paul Phillips, District Attorney
General; and Jared R. Effler, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

The petitioner, David Jones, appeals the Claiborne County Criminal
Court's denial of his petition for post-conviction relief from his
convictions for attempted second degree murder and two counts of
aggravated assault and resulting effective sentence of fifteen years. 
He claims that he received the ineffective assistance of counsel
because his trial attorney failed to request a mental evaluation for
him and that his guilty pleas were not knowingly, intelligently and
voluntarily entered.  We affirm the trial court's denial of the
petition.

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

STATE OF TENNESSEE v. ALEJANDRO RIVERA

Court:TCCA

Attorneys:

Carl R. Ogle, Jr., Jefferson City, Tennessee, and Tim S. Moore,
Newport, Tennessee, for the appellant, Alejandro Rivera.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Angele M. Gregory, Assistant Attorney General;
Alfred C. Schmutzer, Jr., District Attorney General; and Ronald C.
Newcomb, Assistant District Attorney General, for the appellee, State
of Tennessee.

Judge: WEDEMEYER

First Paragraph:

The Cocke County Grand Jury indicted the Defendant for first degree
premeditated murder pursuant to Tennessee Code Annotated section
39-13-202 (1997).  After a trial, the jury convicted the Defendant of
the indicted charge and then sentenced him to life in prison with the
possibility of parole.  The Defendant appeals contending that: (1) the
prosecutor made improper statements to the jury; (2) the trial court
improperly admitted into evidence two pieces of evidence and
statements of his co-defendants; (3) the trial court erred when it
refused to grant his request for a continuance; (4) the trial court
erred when it refused to grant him a judgment of acquittal; (5) the
trial court erred when it instructed the jury; (6) the voir dire was
improper; (7) the trial court erred when it refused the Defendant's
request to change venue; (8) the trial court erred when it refused to
admit drawings made by a key prosecution child-witness; (9) the trial
court erred when it allowed two witnesses to remain in the courtroom
for the duration of the trial; (10) the trial court erred when it
refused to consider evidence regarding statements allegedly made by
the jury foreman; (11) the trial court erred when it refused to allow
a New York search warrant and affidavit to be admitted into evidence;
(12) the trial court erred when it allowed a photograph of the
deceased to be admitted into evidence; and (13) the trial court erred
when it did not review the "TBI file."  Finding no error in the
judgments of the trial court, we affirm the Defendant's conviction.

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

STATE OF TENNESSEE v. JASON D. SEILER

Court:TCCA

Attorneys:

Mark H. Toohey, Kingsport, Tennessee, for the appellant, Jason D.
Seiler.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.                       

Judge: TIPTON

First Paragraph:

The defendant, Jason D. Seiler, appeals from the Sullivan County
Circuit Court's revoking his probation that he received for his guilty
pleas to four counts of failure to appear.  The defendant contends
that the trial court abused its discretion by revoking his probation
and sentencing him to confinement.  We affirm the judgment of the
trial court.

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

STATE OF TENNESSEE v. LILLIAN ILEENE THORNTON

Court:TCCA

Attorneys:

Donna Leigh Hargrove, District Public Defender, and Curtis H. Gann and
Andrew J. Dearing, III, Public Defenders, for the appellant, Lillian
Ileene Thornton.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger,
Assistant Attorney General; William Michael McCown, District Attorney
General; and Michael D. Randles, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: WILLIAMS

First Paragraph:

The defendant pled guilty to forgery and agreed to a sentence of
eighteen months, with the manner of service to be determined by the
trial court.  The trial court denied her request for alternative
sentencing based on her lack of potential for rehabilitation and her
lack of honesty at the sentencing hearing.  The judgment of the trial
court is affirmed.

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

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