APPELLATE COURT OPINIONS

This case involves the enforcement of a non-compete agreement. Plaintiff filed suit to enjoin Defendant from practicing medicine in violation of a covenant not to compete entered into by the parties. The trial court granted Plaintiff's application for a temporary injunction from which Defendant sought this interlocutory appeal. We reverse in part, affirm in part, and remand.

The Appellant, Lester Arnold Clouse, was convicted by a White County jury of five counts of setting fire to land, two counts of aggravated assault, and one count of resisting arrest. These convictions resulted in an effective sentence of twenty-one years, eleven months, and twenty-nine days. On appeal, Clouse raises three issues for our review: (1) whether the evidence was sufficient to convict him of setting fire to land and aggravated assault; (2) whether the trial court erred by denying his motion for a mistrial after a co-defendant invoked his Fifth Amendment privilege and testified before the jury that he had been threatened; and (3) whether the jury instruction regarding circumstantial evidence was proper. After review of the record, we conclude that the errors resulting from the co-defendant's invocation of his Fifth Amendment privilege at trial affected the jury's verdict. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court’s denial of habeas corpus relief. The Petitioner fails to assert a cognizable ground for habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Following his transfer from juvenile court, the appellant, Quinton Sanders, was convicted of first degree felony murder, attempted theft of property over $1,000 but less than $10,000 in value, and theft of property over $10,000 but less than $60,000 in value. He received sentences of life imprisonment, two years, and five years, respectively. All sentences are to be served consecutively. In this appeal, the appellant maintains that the trial court erred in failing to instruct the jury with respect to any lesser-included offenses of felony murder. The appellant also maintains that the trial court erred in excluding evidence of the Memphis Police Department's policies and procedures regarding high-speed chases. The State maintains that the trial court properly excluded evidence of the high speed chase policies and procedures, but concedes that the trial court erred in declining to instruct the jury with respect to the lesser-included offenses of felony murder. After an exhaustive examination of the record and applicable authorities, we conclude that the trial court did indeed err in declining to instruct the jury on the lesser-included offenses of felony murder and the error is not harmless beyond a reasonable doubt. We also conclude that the trial court properly excluded evidence of the high speed chase policies and procedures of the Memphis Police Department. Accordingly, the appellant's conviction for first degree felony murder is Reversed and Remanded for a new trial in accordance with this opinion. His remaining convictions for attempted theft and theft as well as the sentences for those offenses are affirmed.

The Defendant, Mike Lafever, was indicted on three counts of theft. A jury subsequently convicted him of one count of theft over $10,000, a Class C felony, and one count of theft over $1,000, a Class D felony. The jury assessed fines of $10,000 and $5,000 for these offenses, respectively. The jury acquitted him of the other count. The trial court sentenced the Defendant to five and one-half years for the Class C felony, and to three and one-half years for the Class D felony. The sentences were ordered to run concurrently and to be served on community corrections. In this direct appeal, the Defendant argues that the trial court erred in refusing to admit a statement he made to the police; erred in refusing to instruct the jury on mistake or ignorance of fact; that the evidence is not sufficient to support his convictions; that his sentences are excessive; and that the trial court should have waived his fines. We affirm the judgments of the trial court.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

The defendant was convicted of robbery and driving while a habitual motor vehicle offender. The defendant contends on appeal that the trial court erred in 1) denying his constitutional right to the assistance of counsel, and 2) conducting the trial in absentia while the defendant was not represented by counsel. We conclude that once elbow counsel has been appointed, and the defendant is absent voluntarily or through removal because of behavior, the trial court should require elbow counsel to represent the absent defendant. Under the facts of this case, the trial court erred in not requiring elbow counsel to proceed to represent the defendant when he was removed from the courtroom. Accordingly, the judgments of conviction are reversed and remanded for a new trial.

On May 5, 1999, TPC Facility Delivery Group, LLC entered into a Preliminary Design-Build Agreement with defendant PAMOB, LLC in connection with the construction of a proposed medical office building in Tullahoma, Tennessee. TPC was to provide architectural, engineering, and general contracting services under this agreement. The initial contract provided for an additional agreement to be entered into by the parties if the owner elected to proceed with the project beyond the Preliminary Design-Build services. On December 18, 2001, TPC filed suit in Williamson County Chancery Court claiming it performed additional services to PAMOB beyond those designated in the Preliminary Agreement all of which were allegedly authorized by various defendants. For these additional services, TPC submitted bills to PAMOB which were never paid. In response to the complaint, the defendants filed separate motions to dismiss on the grounds of improper venue. On May 6, 2002, the trial court heard oral arguments from all counsel and found the motion to dismiss should be granted. On July 19, 2002, the trial court entered its Order of Dismissal dismissing TPC's complaint on the grounds of improper venue. Notice of this appeal soon followed. For the reasons set forth below, the order of the trial court dismissing the complaint for improper venue is affirmed.

The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. Because the state's closing argument was improper and the error cannot be classified as harmless, the judgment of the trial court is reversed and the cause is remanded for a new trial

The appellant filed a petition for common law writ of certiorari seeking judicial review of a decision of the Board of Paroles to deny him parole. The trial court dismissed the petition as untimely filed. We affirm.

A Davidson County jury convicted the Petitioner, Reginald Garner Brown, of one count of first degree felony murder, one count of especially aggravated kidnapping, one count of aggravated robbery and one count of aggravated burglary. The trial court sentenced the petitioner as a Range I offender to consecutive terms of life with the possibility of parole for murder, twenty-five years for especially aggravated kidnapping, twelve years for aggravated robbery and six years for aggravated burglary. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Defendant's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court's judgment.

The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively.

In an action to enforce right to easement, the Trial Court enjoined defendant to remove gate across easement and otherwise not interfere with plaintiffs' use. On appeal, we affirm.

This dispute arose out of a breach of contract claim in which Plaintiff asserted Defendant owed upwards of $20,000.00 for goods and services provided from March 1996 through August 1997. Defendant raised affirmative defenses and filed a counterclaim for fraud, alleging that Plaintiff intentionally submitted false billings. Plaintiff moved for summary judgment. The Chancery Court granted Plaintiff’s motion for summary judgment on the complaint and dismissed Defendant’s counterclaim for fraud. Defendant appealed. We affirm the judgment of the trial court.

A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

Administrative Law Judge vacated Certificate of Need, which had been granted by Tennessee Health Facilities Commission, on grounds of conflict of interest of a Commission member and erroneous information set forth in application for Certificate of Need. Chancery Court affirmed. We affirm, holding that the vote of a Commission member with a conflict of interest is void ab initio. Commission member with conflict of interest had an affirmative duty pursuant to Rules of Tennessee Health Facilities Commission 0720-1-.02(1) to not only disclose the conflict but to recuse himself. Adverse party's failure to raise the conflict was not a waiver for there can be no waiver of the public's interest in having all votes of the Commission take place without members who have a conflict.

This appeal involves a claim for unemployment compensation benefits by Lisa Huckabee ("Claimant"). When Claimant was hired by Watkins & Son, Inc. (the "Employer"), the Employer's policy prohibiting fraternization between employees was explained to her. Nevertheless, Claimant began a consensual affair with a coworker. The coworker's employment was terminated when the Employer learned of the affair. It is disputed as to whether Claimant was discharged or quit before she could be discharged. The Board of Review concluded that Claimant was disqualified from receiving benefits regardless of whether she quit or was discharged. The Trial Court reversed after concluding, inter alia, that the issue of whether Claimant was discharged for work related misconduct was not an issue the Board of Review could properly consider because the Employer did not raise that issue at the previous two administrative levels. The Trial Court also concluded that the decision by the Board of Review was not supported by substantial and material evidence. We reverse the judgment of the Trial Court and reinstate the judgment of the Board of Review.

In Lester Johnson v. State, No. E2001-00019-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 11, 2002), and State v. Jimmy D. Goode, No. E2000-02829-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 19, 2001), I authored opinions indicating that the finding of an emergency is the only time a trial court might suspend the sentence of an individual convicted of a violation of Tennessee Code Annotated section 55-10-616. Johnson was a post-conviction case in which the petitioner alleged bias on the part of the trial judge. The holding in Goode was that an actual emergency is not only a defense to prosecution under the Motor Vehicle Habitual Offenders Act, but also a factor which could be considered at sentencing in the event of a conviction. In State v. Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App., at Knoxville, June 15, 1995), however, a panel of this court had held that the 1989 Act superseded the terms of Tennessee Code Annotated section 55-10-616(c), thereby providing sentencing alternatives absent an emergency. Our research indicates that other panels of this court, relying upon the holding in Fife, have established a conflicting line of authority. After further review, I am persuaded by the majority that the terms of the 1989 Act, so comprehensive in nature, should apply, thereby affording the trial court with more flexibility in the sentencing of habitual motor vehicle offenders. The facts here demonstrate why it is so important for trial judges to have wide discretionary authority in matters of sentencing.

The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue.

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness to J. Lynn Nance ("Defendant") in the amount of $15,000. The Promissory Note ("Note") was secured by a Deed of Trust on Plaintiff's house. After Plaintiff failed to make any payments on the Note, Defendant foreclosed on the house. Plaintiff then filed this lawsuit challenging the adequacy of the consideration supporting the Note. At trial, Defendant testified to various cash loans he made to Plaintiff which he claimed constituted adequate consideration for the Note. Plaintiff claimed these were gifts, not loans. The Trial Court concluded the Note was supported by adequate consideration and dismissed the complaint. Plaintiff appeals. We affirm.

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction.

A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant’s convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions.

Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court.

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his petition for post-conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal of the Defendant's post-conviction petition because it was time-barred. Furthermore, we conclude that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition.