Opinion FlashOctober 8, 2004
Volume 10 Number 195
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):
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Howard H. Vogel
TRUMAN CLOUSE, ET AL. v. MARC FLOYD WHICHER Court:TCA Attorneys: Henry D. Fincher, Cookeville, Tennessee, for the appellants, Truman Clouse and Sue Clouse. Tom Beesley, Crossville, Tennessee, for the appellee, Marc Floyd Whicher. Judge: CANTRELL First Paragraph: This appeal involves a boundary dispute between neighboring landowners over a strip of land between six and nine feet wide. The parties submitted conflicting surveys in support of their respective claims to the disputed strip, but both agree the original subdivision plat is flawed. In addition, the defendant claims title to the disputed strip based on adverse possession. The trial court set the boundary line in accordance with the defendant's expert's survey and the plaintiffs appealed. We affirm. http://www.tba.org/tba_files/TCA/clousetruman.wpd
NANCY RENEE (MCREYNOLDS) DELBRIDGE v. ROBERT IRVING MCREYNOLDS Court:TCA Attorneys: R. Steven Waldron, Murfreesboro, Tennessee, for the appellant, Nancy Renee (McReynolds) Delbridge. John H. Norton, III, Shelbyville, Tennessee, for the appellee, Robert Irving McReynolds. Judge: COTTRELL First Paragraph: Mother appeals from the trial court's order modifying a prior agreed custody order concerning school placement for the parties' two minor children. Mother argues that there was no material change of circumstances that warranted the trial court's decision. Because we determine that the evidence does not preponderate against the trial court's findings that a material change in circumstances occurred and that the modification of the school placement arrangement was in the best interests of the children, we affirm the decision of the trial court. http://www.tba.org/tba_files/TCA/delbridgenancyr.wpd
J. HOWARD JOHNSON, ET AL. v. MICHAEL R. ALLISON, ET AL. Court:TCA Attorneys: Joseph L. Lackey, Jr., Nashville, Tennessee, for the appellants, J. Howard Johnson, George W. Holder, Jr., individually and/or As Attorney-In-Fact for Wesley Holder, III, and Robert F. Lance, all d/b/a Gateway Development. Kenneth L. Campbell, Nashville, Tennessee, for the appellees, Michael R. Allison and Diane A. Allison. Judge: COTTRELL First Paragraph: The parties entered into an option contract for the sale and purchase of a piece of land. The bargained-for option had a limited duration, with the buyer entitled to extend the option for additional consideration if it exercised that right within an agreed-upon time frame. The buyer paid for several extensions, but did not exercise the option before the final option deadline had passed. The sellers subsequently refused to sell, and the buyer sued for breach of contract and specific performance. The sellers filed a motion for summary judgment, which the trial court granted. We affirm the trial court. http://www.tba.org/tba_files/TCA/johnsonjhoward.wpd
MARY RUTH WILLIS, as Surviving Mother of and Administratrix for the Estate of JENNIE LEE EDDLEMON, deceased v. UNIVERSITY HEALTH SYSTEM, INC., d/b/a THE UNIVERSITY OF TENNESSEE MEDICAL CENTER, TEAM HEALTH, INC., SOUTHEASTERN EMERGENCY PHYSICIANS, INC., and RALF JOFFE, D.O. Court:TCA Attorneys: Linda G. Welch, Knoxville, Tennessee, for Appellant. Heidi A. Barcus and Hillary B. Jones, Knoxville, Tennessee, for Appellee, Ralf Joffe, D.O. Judge: FRANKS First Paragraph: Plaintiff added defendant to suit pursuant to Tenn. R. App. P. Rule 15 after statute of limitations expired. The Trial Court granted defendant summary judgment. On appeal, we affirm. http://www.tba.org/tba_files/TCA/willismaryr.wpd
STATE OF TENNESSEE v. JONATHAN B. CUTSHAW Court:TCCA Attorneys: Susanna Laws Thomas, Newport, Tennessee, for the Appellant, Jonathan B. Cutshaw. Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: The defendant, Jonathan B. Cutshaw, pleaded guilty in the Cocke County Criminal Court to one count of burglary, in violation of Tennessee Code Annotated section 39-14-402, and to one count of vandalism, in violation of Tennessee Code Annotated section 39-14-408. Pursuant to his plea agreement with the state, he accepted joint and several liability for restitution, along with others involved in the vandalism, and he received an effective sentence of three years, with the manner of service of the sentences to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant to serve his sentences in confinement and to pay restitution. It is from this order that the defendant appeals. We modify the judgment of the trial court as to manner of service of the sentences and remand for further findings regarding the appropriate amount of restitution. http://www.tba.org/tba_files/TCCA/cutshawjonathanb.wpd
STATE OF TENNESSEE v. CARLOS EDDINGS WITH DISSENTING OPINION Court:TCCA Attorneys: Garland Erguden, Memphis, Tennessee, for the appellant, Carlos Eddings. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; William L. Gibbons, District Attorney General; David Zak, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Defendant, Carlos Eddings, was tried and convicted for aggravated robbery, and the trial court sentenced the Defendant to ten years in prison. The Defendant appeals contending that: (1) the trial court permitted improper closing argument by the State; and (2) the trial court improperly applied enhancement factors when sentencing the Defendant. In a supplemental pro se letter, the Defendant asks this Court to consider whether the trial court improperly gave the jury an instruction after it began deliberating. After a through review of the record and applicable case law, we conclude that, based on Blakely v. Washington, the sentence must be modified to a term of eight years. Otherwise the judgments of the trial court are affirmed. http://www.tba.org/tba_files/TCCA/eddingscarlos_opn.wpd DISSENTING OPINION http://www.tba.org/tba_files/TCCA/eddingscarlos_dis.wpd
STATE OF TENNESSEE v. WILLIE NORMAN Court:TCCA Attorneys: Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Willie Norman. Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Jerald Campbell, Assistant District Attorney General, for the appellee, the State of Tennessee. Judge: WOODALL First Paragraph: Defendant, Willie Norman, was indicted for possession of over .5 grams of cocaine with intent to sell or deliver, resisting arrest, and two counts of assault. Defendant pled guilty to possession of cocaine with intent to sell or deliver, and the remaining counts were dismissed. Defendant entered his guilty plea, reserving for appeal, as a certified question of law, the issue of whether the search of his vehicle violated his constitutional rights. We conclude that the certified question of law was properly reserved for appeal. We also conclude that the trial court properly denied Defendant's motion to suppress. Accordingly, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/normanwillie.wpd
STATE OF TENNESSEE v. WILEY YAVEL SMITH Court:TCCA Attorneys: Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant Public Defender, for the appellant, Wiley Yavel Smith. Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William H. Cox, III, District Attorney General; and Boyd M. Patterson, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. Judge: TIPTON First Paragraph: The defendant, Wiley Yavel Smith, pled guilty in the Hamilton County Criminal Court to attempted especially aggravated robbery, a Class B felony, and the trial court sentenced him as a Range I, standard offender to nine years in confinement. The defendant appeals, claiming that his sentence is excessive and that he should receive an alternative sentence. We hold that the trial court improperly enhanced the defendant's sentence and modify the sentence to eight years. We conclude that alternative sentencing is not appropriate in this case. http://www.tba.org/tba_files/TCCA/smithwileyyavel.wpd
STATE OF TENNESSEE v. ROBBIE CHET WALLEY Court:TCCA Attorneys: James T. Powell, Union City, Tennessee, for the appellant, Robbie Chet Walley. Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The defendant, Robbie Chet Walley, was convicted of possession of drug paraphernalia and was sentenced to eleven months, twenty-nine days, all suspended except for sixty days. On appeal, he argues that the trial court erred in denying alternative sentencing. Based upon our review, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/walleyrobbiec.wpd
Use of tobacco products in local jail facilities Date: October 5, 2004 Opinion Number: 04-151 http://www.tba.org/tba_files/AG/2004/op151.pdf
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