APPELLATE COURT OPINIONS

The petitioner, Freddie T. Inman, Jr., sought post-conviction relief from his conviction of theft of property having a value of more than $1,000 but less than $10,000. The McNairy County Circuit Court denied relief after an evidentiary hearing. On appeal, the petitioner argues that he received ineffective assistance of counsel because trial counsel failed to subpoena and call three witnesses at trial. We affirm the denial of post-conviction relief.

The Petitioner, Antonio Kendrick, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court dismiss the above-captioned appeal or, in the alternative, affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to comply with the procedural requirements for seeking habeas corpus relief and has failed to allege any ground that would render the judgment of conviction void.  Accordingly, we affirm the trial court’s dismissal.

This is an appeal from the dismissal of a petition to modify custody of a minor child. The trial court determined that the petitioner, the natural father of the child, should not be afforded the superior rights of a parent. We disagree and reverse.

This appeal involves a dispute between two landowners over use of a route across the defendants’ land that the plaintiffs use for access to their nearby land. Plaintiffs filed suit contending they had a right to use the disputed route. The trial court determined that the route had been dedicated and accepted as a public road, that the plaintiffs were entitled to a prescriptive easement over the defendants’ land, and that the plaintiffs had a right to use the road by adverse possession. We have determined that the contested section of the route is not a public road, that adverse possession does not apply, and that the plaintiffs are entitled to a prescriptive easement over the defendants’ land.

The Tennessee Supreme Court has remanded this case for further consideration of the defendant’s sentencing in light of State v. Gomez, 239 S.W.3d 733 (Tenn., Oct. 9, 2007). Although the defendant’s original 23-year sentence1 involved the use of enhancement factors that violated the defendant’s Sixth Amendment right to a jury trial, we hold that the sentence of 23 years is not plain error. Accordingly, the 23-year sentence is affirmed.

This case involves the enforcement of restrictive covenants in equity. After subdividing their property, imposing restrictions on the three lots they sold, and retaining the remaining land, vendors brought suit against remote grantees to enforce the restrictive covenants and to enjoin them from operating a wedding chapel, for commercial use, on the land. The central issue on appeal is whether the restrictions bind the remote grantees when the covenants were listed on an undated and unsigned attachment to a deed that neither identified encumbrances nor incorporated the attached restrictions. Following a trial on the matter, the trial court permanently enjoined the commercial activity because the remote grantees took title with actual notice of the restrictions. Finding ample support for the imposition of an equitable servitude, we concur in the trial court’s judgment. Affirmed and remanded.

In October 2004, a Sullivan County grand jury indicted the defendant, Thomas Harville, Jr., on one count of violating his status as a habitual motor vehicle offender, a Class E felony. Following a June 2005 jury trial in Sullivan County Criminal Court, the defendant was convicted on the sole count of the indictment and sentenced to two years as a Range I, standard offender, with the defendant to serve eighty days in jail and the balance of his sentence on community corrections. The defendant appeals, alleging that the trial court: (1) improperly admitted the preliminary hearing testimony of a police officer when the state failed to show that the witness was unavailable at trial; (2) improperly determined that the state could impeach the defendant with a prior felony conviction for evading arrest; and (3) improperly sentenced the defendant. After reviewing the record, we conclude that the defendant has waived the first issue on appeal and that the trial court committed no error as to the other two issues. Accordingly, we affirm the judgment of  the trial court.

In this case, the majority holds that the defendant failed to contest the question of Officer Cousins’s unavailability and, thus, under Tennessee Rule of Appellate Procedure 36(a), is not entitled to relief on this issue. I respectfully disagree.

I join with the majority, but write separately for the following reasons.

The defendant, Corey Montez Rickman, pled guilty in 2002 to four counts of aggravated robbery and received an effective sentence of thirty-two years, with three years to be served in the Sumner County Jail and twenty-nine years on community corrections. In 2006 he acknowledged violating the terms of his community corrections sentence after testing positive for cocaine, and the trial court ordered that the remainder of his sentence be served in the Department of Correction, which the defendant appealed. We conclude that the defendant’s convictions for aggravated robbery disqualified him for community corrections and, accordingly, dismiss the appeal.

This matter is before the court upon the Defendant’s appeal from an order of the trial court denying the Defendant’s motion to withdraw his guilty pleas. The Defendant now appeals, contending that: (1) the trial court erred when it denied his motion to withdraw his guilty pleas because his guilty pleas were not knowingly, voluntarily and understandingly entered; and (2) his intended sentences could not be achieved by operation of law. Because we conclude that the defendant’s guilty pleas were not knowingly, voluntarily and understandingly entered, we reverse the order of the trial court and remand to the trial court for further proceedings.

Bank filed suit to enforce an arbitration award for a debt owed by a former credit card holder. The trial court granted summary judgment against the debtor, who appeals based on alleged procedural improprieties. We affirm.

The Defendant, Bretran R. Thompson, was disbarred in 1996. In 2004, the Defendant was indicted in two, two-count indictments each for impersonation of a licensed professional and theft, with a different victim in each indictment. In 2005, the Board of Professional Responsibility filed a petition for contempt against the Defendant alleging he violated his disbarment order from 1996. The Defendant pled guilty to contempt and was sentenced to fifty days in jail. He then moved to dismiss the two indictments in Shelby County Criminal Court. After argument, the trial court dismissed the two charges of impersonation of a licensed professional on double jeopardy grounds but refused to dismiss the two theft charges. The State sought interlocutory appeal under Rule 9 contesting the dismissal of the impersonation of a licensed professional charges, which  was joined by the Defendant contesting the non-dismissal of the theft charges. After a thorough review of the facts and applicable law, we affirm in part and reverse in part the judgments of the trial court. We affirm the trial court’s judgment denying dismissal of the theft charges, but reverse the judgment of the trial court dismissing the charges of impersonation of a licensed professional. The case is remanded for further proceedings on both sets of charges.

This appeal is from a final order in a proceeding for judicial review of an administrative decision pursuant to Tenn. Code Ann. § 4-5-322. The Tennessee Department of Transportation (“TDOT”) filed this action claiming that a billboard which was rebuilt by the defendants after it was blown down in a storm did not meet the requirements of the regulation governing reconstruction of stormdamaged billboards. Following a hearing, the Administrative Law Judge determined that the rebuilt billboard violated the applicable regulation and ordered its removal. The decision was affirmed by the TDOT Commissioner (“the Commissioner”), and later by the Chancery Court for Davidson County (“the Trial Court”). On appeal, we find that the Trial Court did not have the necessary administrative record before it as required when it reviewed this case. Because the Trial Court’s review is limited to the administrative record, Tenn. Code Ann. § 4-5-322(g), and the complete administrative record was not available to the Trial Court, we vacate the Trial Court’s judgment and remand for a new review to be conducted after the full administrative record is filed with the Trial Court. We vacate and remand.

Because I disagree with the majority’s conclusion as to the classification of some of the personal property at issue in this appeal, I must dissent. It is undisputed that the boat and trailer were Husband’s separate property prior to the marriage. Consequently, we must begin with the presumption that they should be classified as his separate property. Tenn. Code Ann. § 36-4-121(b)(2). Therefore, the burden of proving that the property had been transmuted into marital property lay with Wife. Based on the record before us, I do not believe that Wife met that burden.

The unsuccessful plaintiff appeals the summary dismissal of her slip and fall claim against an apartment complex and its owner. During the second day of a winter storm, the plaintiff traveled along icy roads to make a security deposit at the apartment complex. Although she had carefully exited her vehicle and walked to the office to make the deposit, she chose to “trot” back along the same path to her car. While trotting to her car, she slipped on the icy parking lot, breaking her ankle. The trial court summarily dismissed the plaintiff’s complaint.  Viewing teh facts in a light most favorable to the plaintiff, we find that reasonable minds could not differ that the plaintiff's fault was greater than that of the defendants.  We, therefore, affirm.  

Husband appeals the award of certain items of personal property to Wife in a divorce action. Husband and Wife lived together for many years prior to the marriage and acquired both personal and real property during their cohabitation in addition to the property each owned individually. Husband argues that there was no evidence to support a finding that items awarded Wife,  specifically a Corvette, a boat, and a trailer, could be considered marital property or the separate property of Wife. Thus, Husband contends that the trial court erred in its distribution of assets. Finding no error below, we affirm the judgment of the trial court.

We granted the defendant’s application for permission to appeal in this case to determine whether a class action may be certified in a claim brought under the Tennessee Consumer Protection Act (“TCPA”), Tennessee Code Annotated sections 47-18-101S125 (2001), or in a claim for common law misrepresentation and fraud. The plaintiff, on his own behalf and on behalf of similarly situated individuals, filed a complaint against Sunrise Pontiac-GMC Truck, Inc., challenging sales transactions in which buyers were charged “dealer incurred costs” as part of the purchase price. The complaint alleged class action claims for, among other things, Tennessee Consumer Protection Act violations and common law  misrepresentation and fraud. The trial court denied the defendant’s motion for summary judgment with respect to the class certification of the TCPA, misrepresentation and fraud claims. The court granted the defendant’s motion for a Rule 9 interlocutory appeal and to stay discovery. The Court of Appeals denied the motion for a Rule 9 appeal on the basis that we would soon be addressing the same issues in a different case.1 We granted the defendant’s application for  permission to appeal when the issue remained unresolved. Upon thorough review of the record and the legal issues presented, we hold that class certification is unavailable under the TCPA and that class certification was not appropriate in the plaintiff’s claims for common law fraud and misrepresentation due to the individual nature of those  claims.

Appellees, Tony Galtelli, John Gardner and Vance Plumoff, all West Memphis, Arkansas police officers, were indicted for reckless homicide by the Shelby County Grand Jury after a high-speed chase. The chase resulted in the shooting death of Kelly Allen, a passenger in the vehicle involved in the chase. The district attorney general denied pretrial diversion for each officer. Subsequently, Appellees sought relief from the denial of pretrial diversion by filing a petition for writ of certiorari in the trial court. The petition alleged that the district attorney general abused his discretion by denying pretrial diversion. The trial court granted the writ of certiorari, ordering the district attorney general to place Appellees on pretrial diversion. The State sought both an interlocutory appeal and an extraordinary appeal. Both requests were denied. The State subsequently sought and was granted permission to file a late notice of appeal pursuant to Tennessee Rules of Appellate Procedure 3. On appeal, the State asserts that the trial court improperly concluded that the district attorney general abused his discretion by denying pretrial diversion and that the trial court erred by ordering the district attorney general to enter a memorandum of understanding to place Appellees on pretrial diversion. After a review of the record, we conclude that even though the trial court properly determined that the district attorney general abused his discretion by denying pretrial diversion, the trial court improperly ordered the district attorney general to place Appellees on pretrial diversion where the district attorney general failed to consider all relevant factors in denying diversion.  According to State v. McKim, 215 S.W.3d 781 (Tenn. 2007), the trial court should have reversed the district attorney general’s denial of diversion and ordered the district attorney general to consider all the relevant factors in regard to granting or denying the applications for diversion. Therefore, we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

The Defendant, Travis Young, was convicted of two counts of aggravated robbery, three counts of aggravated assault, two counts of reckless aggravated assault, and one count of intentionally evading arrest. The trial court sentenced the Defendant to an effective sixteen-year sentence. On appeal, the Defendant contends that the trial court erred when it: (1) classified him as a Range II offender; (2) enhanced the Defendant’s sentences; and (3) imposed consecutive sentences. We affirm the judgments of the trial court as modified, and we remand the case for entry of judgments consistent with this opinion.

The defendant, Charles Vantilburg III, was originally convicted of second degree murder in 2002 and sentenced to 20 years’ incarceration. On direct appeal, this court reversed the defendant’s conviction and remanded the case for a new trial on the basis of the trial court’s giving an erroneous definition of the term “knowingly.” See State v. Charles Vantilburg, No. W2002-01480-CCA-R3-CD (Tenn. Crim. App., Jackson, Jan. 13, 2004). After a second trial, the defendant was again convicted of second degree murder, and the trial court imposed a 22-year sentence. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting into evidence a “memorandum of understanding” signed by the parties, (3) the trial court erred by permitting the state to play a videotape of the recovery of the victim’s body, (4) the trial court erred by instructing the jury on flight, and (5) the sentence is excessive. The sentence is modified to 20 years; otherwise, the judgment of the trial court is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and a report of findings of fact and conclusions of law. Employee developed bilateral carpal tunnel syndrome as a result of her employment. The trial court awarded 55% permanent partial disability to the right arm and 35% permanent partial disability to the left arm.  Her employer has appealed, contending that the award is excessive. We conclude that the evidence in the record does not preponderate against the trial court’s award, and affirm the judgment.

This is a negligence claim brought by a student against a school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The court allowed the testimony concerning causation and necessity, but excluded testimony related to reasonableness. In its answer, the school board failed to raise the affirmative defense of comparative fault. On the first day of trial, the court granted the school board leave to amend its complaint to include the comparative fault of other individuals, including the student’s mother. After a bench trial, the circuit court entered a judgment in favor of the student in the amount of $3 million dollars, but reduced that award to $130,000 pursuant to the Governmental Tort Liability Act. The student’s attorney then moved for an award of discretionary costs, which the court denied. The school board appeals, alleging that it is immune from suit because its employees were performing a discretionary function. Next, the school board argues that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. Finally, the school board argues that the only witness that corroborated the student’s claim was not credible. The student raises the issue of whether the court erred in allowing the school board to amend its answer to include comparative fault, and whether the court erred in refusing to award discretionary costs. For the following reasons, we affirm.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sought workers' compensation benefits for a June 2000 injury to his right shoulder and a November 2000 injury to both shoulders. He had surgery to repair a torn labrum of the right shoulder in November 2003. The trial court dismissed the November 2000 claim based upon the statute of limitations, and found that the labral tear was not caused by the June 2000 injury. Employee has appealed, contending that the evidence preponderates against the trial court's decision. We affirm the judgment.

The Appellant, Shelby County Division of Corrections (“SCDC”), appeals the judgment of the trial court in favor of Appellee inmates. Appellee inmates filed suit against the SCDC, under the Tennessee Governmental Tort Liability Act (“GTLA”), for injuries sustained when a metal ventilation system fell from the ceiling while officers were performing a search of the cell block. The SCDC asserts three points of error: (1) that the SCDC is not a governmental entity, as defined by T.C.A.§ 29-20-102(3)(A) of the GTLA so as to be subject to suit thereunder; (2) that expert testimony was required as to the cause of the system’s collapse; and (3) that the trial court erred in not considering the fault of unknown inmates in manipulating the ventilation system. Finding no error, we affirm.