Opinion FlashDecember 1, 2003Volume 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):
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 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 PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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