APPELLATE COURT OPINIONS

Petitioner, Kenneth B. White, filed a pro se petition for post-conviction relief alleging that his trial counsel rendered ineffective assistance of counsel by failing to pursue an appeal following Petitioner’s conviction of vehicular homicide. The post-conviction court dismissed the petition without an evidentiary hearing because it was untimely filed. After a thorough review, we affirm the judgment of the post-conviction court.

The petitioner, Kenny Carson Cockrell, Jr., pled guilty in the Madison County Circuit Court to six  counts of aggravated robbery and one count of attempted aggravated robbery, and he received a total effective sentence of twenty-five years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. After a hearing, the post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Kenny Vaughn and Barbara Vaughn ("Plaintiffs" or "Mr. Vaughn" and "Mrs. Vaughn" as appropriate) sued Notie L. Cunningham and John Doe concerning an automobile accident that occurred in Hamilton County. The case was tried before a jury and the Trial Court entered judgment on the jury's verdict. The jury found John Doe 100% at fault for the accident, but awarded Plaintiffs no damages. Plaintiffs appeal to this Court claiming that the jury verdict is contrary to the evidence because the amount of damages is not within the range of reasonableness, and that the Trial Court erred by not granting a new trial and by awarding court costs against Plaintiffs. We affirm as modified.

In this appeal, we are called upon to evaluate the trial court’s grant of summary judgment to the defendant in a premises liability suit. After reviewing the record, we hold that the plaintiff failed to establish that the defendant owed her a duty of care. Specifically, the plaintiff failed to offer any proof tending to show that the ramp on which she slipped and fell constituted a defective and/or dangerous condition. Accordingly, we affirm the trial court’s grant of summary judgment to the defendant.

The petitioner, Jubal Carson, appeals theLauderdale County Circuit Court’s dismissal of his petition for habeas corpus relief. Because the petitioner failed to timely file a notice of appeal and the interests of justice do not require the waiving of a timely notice, we dismiss the appeal.

The defendant, Troy Wayne Stepp, was convicted of delivery of a Schedule II controlled substance, methamphetamine, a Class C felony, and sentenced as a multiple offender to eight years in the Department of Correction. On appeal, he argues: (1) the trial court erred in allowing the introduction of a transcript of a taped-recorded conversation; and (2) the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

The defendant, Bernard Miguel Wallace, was convicted by a Hardin County jury of the sale of under .5 grams of a Schedule II controlled substance, cocaine, a Class C felony. He was sentenced as a Range II, multiple offender to nine years in the Department of Correction and fined $2000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) his sentence is illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Following our review, we affirm the judgment of the trial court.

The petitioner, Leonard V. Catalano, pled guilty to three counts of aggravated sexual battery. As a result, he was sentenced to thirty-two years incarceration. His sentence was affirmed by this Court on direct appeal. See State v. Leonard V. Catalano, No. M2001-03039-CCA-R3-CD, 2003 WL 21877933 (Tenn. Crim. App. at Nashville, July 9, 2003), perm. app. denied, (Tenn. Nov. 24, 2003). The petitioner subsequently sought post-conviction relief, alleging that his guilty plea was not knowing and voluntary due to ineffective assistance of counsel. Following a hearing, the post-conviction court denied the petition. The petitioner appealed. For the following reasons, we affirm the judgment of the post-conviction court.

The petitioner, Terry Lynn Roberts, was convicted of rape of a child, aggravated sexual battery, and rape and sentenced, respectively, to terms of twenty-five years, eleven years, and twelve years, with the sentences to be served consecutively. The convictions and sentences were affirmed on direct appeal, with the petitioner then filing a petition for post-conviction relief, relying on the holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and asserting that it should be applied retroactively and, as a result, the court erred in enhancing his sentences. The post-conviction court dismissed the petition, and we concur in that dismissal.

The divorced father was found to be in willful criminal contempt of a previous court order by the trial court and sentenced to 10 days in the Williamson County jail for not paying his child support in June 2006, 10 days for not paying his child support in November 2006, 10 days for not paying his child support in December 2006, and 10 days for not paying his share of the medical bills of his minor children. The father appealed. We affirm.

The Petitioner, Samuel K. Robinson, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

The Defendant was convicted of aggravated rape, and the trial court sentenced him to sixty years, as a Range III, persistent, violent offender. The Defendant appeals, contending that: (1) the trial court erred when it denied his motion to suppress his written statement to the police; (2) the record contains insufficient evidence to support his conviction; (3) the trial court improperly commented upon the testimony of a witness; and (4) the trial court improperly sentenced him. After reviewing the record and the applicable law, we conclude that there exists no reversible error.   Accordingly, we affirm the judgment of the trial court.

This is a suit for collection of a credit card debt. AmSouth Bank ("AmSouth") filed a complaint on a sworn account seeking a judgment against Mr. and Mrs. Soltis for the unpaid balance on three credit card accounts. Mr. and Mrs. Soltis answered and denied AmSouth was entitled to any relief. AmSouth filed a motion for summary judgment. Mr. and Mrs. Soltis responded by filing three documents entitled "Verified Application to Confirm and Enforce Arbitration Award" and three "Award" documents indicating that AmSouth Bank owed Mr. and Mrs. Soltis money. The parties had not agreed to arbitration and had not participated in arbitration. The trial court granted AmSouth's motion for summary judgment and Mr. and Mrs. Soltis appealed. The issue presented on appeal is whether the trial court erred in granting AmSouth's motion for summary judgment and in entering judgment against Mr. and Mrs. Soltis. After careful review of the record and applicable authorities, we affirm the judgment of the trial court.

The defendant, Sleda Richards, pled guilty to two counts of reckless aggravated assault, a Class D felony, one count of running a stop sign, a Class C misdemeanor, one count of driving under the influence, a Class A misdemeanor, one count of driving on a revoked license, a Class B misdemeanor, and one count of failure to appear, a Class E felony. The Sullivan County Criminal Court sentenced her to a total effective sentence of six years as a Range I, standard offender to be served in the Department of Correction. The defendant appeals, contending that the trial court erred in denying her probation or alternative sentencing. We affirm the judgments of the trial court.

The Petitioner, Clifford L. Taylor, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

This appeal involves three cases consolidated for oral argument. Because of the duplication of the major issues in the cases, we consolidate the cases into one opinion. The Commissioner of the Tennessee Department of Financial Institutions, acting on statutory authority, took emergency possession of a Tennessee trust company, filing due notice of such action in the Chancery Court of Lewis County. Subsequently, the Commissioner gave notice, as required by statute, of the liquidation of the company, which was commenced in the Chancery Court of Lewis County. The company filed a petition for writ of certiorari and supersedeas in the Chancery Court of Davidson County. The court denied the petition for supersedeas and dismissed the writ of certiorari.  Appellants appeal. We affirm. In the Lewis County Chancery Court proceeding, the court approved the transfer by the Commissioner of the various fiduciary accounts administered by the company and other assets of the company, and the appellants appeal. We affirm. Included in the disposition of the property was real estate located in Bellevue, and the Commissioner filed a motion in the Lewis County Chancery Court for approval of the sale of this real estate. Objections were filed to the Bellevue sale motion. The court, after hearing proof, approved the sale. Appellants filed separate appeals. We affirm.

I concur in the results and most of the reasoning in the majority opinion. I disagree, though, with its view of the trial court’s instructing the jury regarding an excited utterance. The hearsay rule of exclusion is mainly based upon concerns for the reliability of the asserted fact by an out-of-court declarant. See State v. Henry, 33 S.W.3d 797, 803 (Tenn. 2000). An excited utterance is an exception to the rule of exclusion because we believe it occurs under circumstances rendering it sufficiently reliable to be admitted into evidence. See State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn. 1997). However, a trial court should not explain this to a jury because it is truly a comment relevant to the reliability of the evidence.

The petitioner, Brian Alan Hanna, appeals from the Wilson County Criminal Court's summary dismissal of his petition for post-conviction relief from his conviction of theft of property valued over $1000, six forgery convictions, and effective sentence of eight years. He contends that the trial court erred in concluding that his petition was untimely filed and in denying his motion to discharge fines and costs. We affirm the trial court regarding the forgery convictions, but reverse the dismissal regarding the theft and remand the case to the trial court.

This is an action to recover damages for the alleged improper disposition of funds in a conservatorship account, conspiracy, and false advertising. The plaintiff’s mother was placed under a conservatorship, and the conservator opened an account at the defendant bank for the conservatorship. After the plaintiff’s mother died, the account was settled and the accounting was approved by the Gibson County Chancery Court. The plaintiff sought to recover funds from the account, but was informed that the account was settled. The plaintiff sued the bank and its branch manager for conspiracy, false advertising, and disappearing funds. The trial court granted the defendants’ motion to dismiss. We affirm.

An unsuccessful party to an arbitration proceeding appeals the trial court's confirmation of the arbitration decision. The challenge is based on alleged ambiguities in the agreement to arbitrate and alleged failure by the arbitrator to disclose potential conflicts. We affirm the trial court's confirmation.

Plaintiff inmate filed a petition with the Tennessee Department of Corrections for a declaratory ruling that he was entitled to a parole hearing. Upon denial of his petition, Plaintiff inmate filed an action against two Tennessee Board of Probation and Parole employees, seeking judicial review of the denial of his petition. The trial court granted Defendants' motion for summary judgment based upon the expiration of the statute of limitations. Plaintiff inmate appeals and we affirm the decision of the trial court.

The defendant, Richard Lee Frazier, appeals the Sullivan County Criminal Court's order revoking his probation. On appeal, the defendant claims that although he violated his probation, the trial court abused its discretion by revoking his probation and ordering him to serve his sentence in confinement. We affirm the judgment of the trial court.

This is an action to recover on a surety bond. The plaintiff automobile wholesaler sold vehicles to the third-party defendant automobile retailer. The retailer gave thewholesaler the certificates of title for the vehicles as security, pending the retailer’s payment in full for the vehicles. Subsequently, the retailer sold the vehicles to third parties, but did not pay the wholesaler. The wholesaler, therefore, retained the certificates of title. Consequently, the retailer was unable to transfer the certificates of title to the third-party purchasers when they bought the vehicles. Later, in a separate lawsuit, the wholesaler obtained a judgment against the retailer for breach of contract. The wholesaler then filed the instant lawsuit against the defendant surety company on the retailer’s automobile dealership surety bond, claiming that it was damaged by the retailer’s failure to transfer the certificates of title to the purchasers of the vehicles. The surety company filed a third-party complaint against the retailer, asserting that the retailer was required to indemnify the surety company for its attorney’s fees expended in defending the underlying lawsuit. The surety company filed a motion for summary judgment. The trial court granted summary judgment in favor of the surety company against both the wholesaler and the retailer. The wholesaler and the retailer now appeal. We affirm.

This is an action to enforce a commercial guaranty. The defendants were both 25% shareholders in the plaintiff corporation. They each signed a guaranty on a $70,000 line of credit issued to the corporation. Subsequently, two other shareholders of the corporation drew down $50,000 from the line of credit without notifying the defendant guarantors or the corporation’s board of directors. Two days later, the guarantors resigned from the corporation. Within weeks, the two other shareholders who drew the money from the line of credit caused the corporation to default on its obligation.  These two shareholders then purchased the corporation’s debt from the bank in the name of the plaintiff corporation and demanded payment from the guarantors under their guaranties. The guarantors refused to make the requested payments. The plaintiff corporation then sued the guarantors pursuant to the guaranties. The guarantors filed an answer asserting the affirmative defenses of fraud and fraud in the inducement of the guaranties. The plaintiff corporation filed a motion for summary judgment, citing the broad “waiver of defenses” provision in the guaranties.  The trial court granted summary judgment to the plaintiff corporation, concluding that the defenses asserted by the guarantors were waived under the general waiver-of-defenses provision. From that order, the guarantors now appeal. We reverse, concluding that the defenses of fraud and fraud in the inducement were not waived in the general waiver-of-defenses provisions in the guaranties at issue.

In this post-divorce case, Richard Austin Demonbreun ("Father"), filed a petition to modify the parties' visitation arrangement, seeking additional time with one of the parties' three children. Rhonda Fay Demonbreun ("Mother"), the primary residential parent of the children, countered with a petition requesting an increase in child support and the imposition of an obligation upon Father to pay the children's unreimbursed medical expenses. In addition, Mother sought one-half of the refund associated with the parties' 1998 income tax return, and an award of her attorney's fees and court costs. Following a bench trial, the trial court (1) denied Father's petition to modify visitation with his oldest son; (2) increased Father's child support obligation and his share of non-covered medical expenses; (3) awarded Mother one-half of the 1998 income tax refund; (4) awarded Mother $5,000 in attorney's fees; and (5) ordered Father to pay all court costs. Father appeals all of the trial court's decrees, and Mother seeks an award of attorney's fees for the filing of a frivolous appeal. We affirm in part and reverse in part, but do not find this appeal to be frivolous in nature.