APPELLATE COURT OPINIONS

This court issued an opinion on November 29, 2005 affirming in part and modifying in part the trial court's judgment, the result of which was an award of damages against Almost Family, Inc., f/k/a Caretenders Health Corporation, (Caretenders) in the amount of $658,886.50 in favor of Franklin Capital Associates, L.P. See Franklin Capital Associates, L.P., v. Almost Family, Inc., f/k/a Caretenders Health Corporation, No. M2003-02191-COA-R3-CV, 2005 WL 3193688, (Tenn. Ct. App. Nov. 29, 2005). On December 9, 2005, Franklin filed a timely petition for this court to rehear that portion of the case relating to the application of a block discount to determine Franklin's damages. Having considered the petition for rehearing, we have concluded the trial court did not err by applying a block discount to determine Franklin's damages. Accordingly, we deny the petition for rehearing.

The petitioner, Joe Clark Mitchell, filed a petition for writ of habeas corpus alleging that he was being held illegally after the expiration of two consecutive six-year sentences. The trial court dismissed the petition. The petitioner appeals, seeking review of the trial court’s dismissal of the petition. Following a review of the record and applicable authorities we affirm the decision of the trial court.

I agree completely with the excellent opinion authored by Judge Lee. I write separately to emphasize what I believe is the most important aspect of this case: the plaintiff, as an incarcerated person, had no place to go, i.e., he could not leave the recreation room to completely avoid the water problem! He was “trapped” along with the seven or eight other inmates in the room. This event happened at night when the sleeping mats of the inmates obviously covered a portion of the floor, thereby further reducing the walking area. I am sure – as the dissent emphasizes – that there was some light in the room; but it obviously wasn’t lighted to the full extent. In the evening, the room was a sleeping area, not a recreation room.

The Appellant, an inmate in the custody of the Tennessee Department of Correction, filed a handwritten pro se petition seeking review by common law writ of certiorari following a denial of parole by the Tennessee Board of Probation and Parole. The board filed a motion to dismiss the petition, citing several defects with the Appellant’s petition. The trial court granted the Appellant time to cure the defects. The Appellant subsequently filed a motion to amend his petition in an effort to comply with the trial court’s directives, however, the trial court subsequently entered an order dismissing the Appellant’s petition. Thereafter, the Appellant filed a post-trial “Motion to Rehear.”  When the trial court did not address the motion, the Appellant filed a notice of appeal to this Court.  We hold that the Appellant’s post-trial motion is, in actuality, a motion to alter or amend the judgment, therefore, we remand the case to the trial court for further proceedings on the motion.

This dispute arose after the Metropolitan Government of Nashville and Davidson County ("Metro") rezoned property owned by the plaintiff, The Westchester Company, LLC ("Westchester"), from multi-family to single-family. As a result of the zoning change, Westchester was unable to carry through with its contract to sell the property to a third party for the development of multi-family town houses. Westchester sought a declaratory judgment as to whether it had a vested right in the previous zoning classification by virtue of the fact (1) that it relied upon statements made by Metro employees regarding the then-existing zoning and Westchester's rights under that zone; (2) that the rezoning caused it to lose the profit it would have received under the contract; and (3) that it is potentially liable for breach of contract. As an alternative theory of recovery, Westchester argued that the zoning change amounted to an unconstitutional taking of its property. The trial court ruled in favor of Metro and dismissed Westchester's claims. Westchester appeals, but only as to the trial court's determination that it did not have a vested right in the previous zoning. We affirm.

In this appeal, we are asked to determine whether the trial court erred when it granted two petitions for writ of certiorari, held that the city court's penalties issued to Marcus Dixon and Anthony Barnett violated Article VI, Section 14 of the Tennessee Constitution, and held that the city court's procedure for collection of fines in chronological order violated public policy. The appellant asserts (1) that the appellees' use of petitions for writ of certiorari were used impermissibly as a substitute for appeal; (2) that the issues raised by the appellees in their petitions for writ of certiorari were barred by the doctrine of res judicata; (3) that the Tennessee Supreme Court's decision in Davis v. City of Chattanooga, 54 S.W.3d 248 (Tenn. 2001), applied prospectively and, thus, did not apply to the appellees' penalties; and (4) that the city court's collection of fines in chronological order was not against public policy. We affirm in part and reverse in part the decision of the trial court, and remand for further proceedings consistent with this opinion.

The majority finds defendant 100% at fault in the face of the Trial Court’s ruling that each party was 50% at fault. In my opinion, the evidence does not preponderate against the Trial Court’s finding that plaintiff was 50% at fault for his fall and injuries. Tenn. R. App. P. 13(d).

The petitioner, Robert Michael Winters, appeals the summary dismissal of his petition for post-conviction relief. The single issue on appeal is whether the petition was timely filed. The judgment is affirmed.

The State of Tennessee appeals the assessment of discretionary costs in an eminent domain action. The property owner was awarded her discretionary costs after the jury awarded her damages in excess of that tendered by the State. The State contends it is exempt from discretionary costs in eminent domain actions. We agree.

The petitioner appeals the denial of his post-conviction petition, contending that: (1) counsel was ineffective in failing to adequately inform him of the consequences of his plea; and (2) his pleas were coerced by counsel's assurances that he would be placed in the DeBerry Special Needs Facility. Upon review, we conclude that counsel explained the consequences of the pleas with the petitioner and that his plea was knowingly and voluntarily entered, as it was made clear to the him that placement was not part of his plea agreement but was within the discretion of the Department of Correction. Therefore, we affirm the denial of post-conviction relief.

The issue presented in this slip-and-fall case is whether the trial court erred in ruling that the Plaintiff and Defendants were each 50% at fault and dismissing the Plaintiff’s lawsuit. While incarcerated in the Loudon County jail, James K. Cannon slipped on a floor wet from rainwater leaking through the ceiling and window frame of his cell. Because we find that (1) Defendants were responsible for creating the hazardous condition, and had prior notice of the hazardous condition and opportunity to remedy it but did not, and (2) Mr. Cannon had little, if any, opportunity to avoid the known risk of walking to the bathroom on a wet floor in rubber “flip-flop” type sandals, we reverse the trial court’s finding that Mr. Cannon was 50% at fault. We hold the evidence preponderates in favor of a finding that Defendants were 100% at fault in the accident causing Mr. Cannon’s injury, and remand the case for a determination and award of damages.

In this appeal, we are asked by the appellant to determine whether the probate court erred when it did not include income earned from the decedent's intellectual property after July 1, 2000 when it calculated the surviving spouse's elective share under the changing fraction method pursuant to the Tennessee Uniform Principal and Income Act. The appellees assert that this issue was decided in the first appeal of this case and that the ruling in that appeal is the law of the case. We affirm.

This appeal arises from a paternity action. The trial court, inter alia, established paternity, awarded custody of the parties' six month old child to Mother, established Father's co-parenting time, ordered Father to pay the birth expenses, and a portion of Mother's lost wages incurred as a result of giving birth to the child. Father appeals. We affirm the judgment of the trial court.

On October 21, 2005, this court issued an opinion vacating the trial court's December 14, 2001 order admitting Joseph Owen Boote, Jr.'s will and first two codicils to probate in solemn form. In re Estate of Boote, No. M2002-02234-COA-R3-CV, 2005 WL 2739287, at *21 (Tenn. Ct. App. Oct. 21, 2005). We instructed the trial court on remand to determine first whether the third codicil to Mr. Boote's will was properly executed, and then, if the trial court determined that it was, to conduct further proceedings preliminary to a will contest. In re Estate of Boote, 2005 WL 2739287, at *21. On October 31, 2005, Mr. Boote's daughters, Helen Boote Shivers and Linda Boote Gerritsen, filed a timely petition for rehearing, and on November 3, 2005, we entered an order requesting supplemental briefing on one of the issues raised in the petition. Ms. Shivers and Ms. Gerritsen, as well as Martha M. Boote, Mr. Boote's widow, have now filed their supplemental briefs. Having carefully considered the petition for rehearing and the supplemental briefs, we deny the petition for rehearing.

This appeal involves the decision of the Davidson County, Tennessee, Juvenile Court to decline to exercise jurisdiction, other than temporary emergency jurisdiction, in a child custody case under the Uniform Child Custody Jurisdiction and Enforcement Act. The judgment of the trial court is affirmed.

This appeal involves a continuing post-divorce dispute regarding child support and related issues. Seven years after the divorce, the former husband filed a petition in the Chancery Court for Marshall County requesting the court to recalculate his child support obligation and to re-establish visitation that had been suspended earlier because of non-payment of child support and failure to abide by the court's orders. The former wife responded by requesting that her former husband be held in contempt for failing to comply with the earlier court orders. Following a bench trial, the court entered an order finding the former husband in "civil" contempt. The court sentenced the former husband to a mandatory ten-day jail sentence and ordered that he remain incarcerated until he paid a portion of his child support arrearage and other financial obligations. The court also recalculated the former husband's child support obligation and ordered the resumption of visitation. On this appeal, the former husband takes issue with the contempt judgment, the earlier suspension of his visitation, and the denial of his request to claim the children as dependents for income tax purposes. While we have determined that the judgment of contempt cannot stand because it is procedurally defective, we find that the remainder of the trial court's August 22, 2003 order is legally and factually sound.

The petitioner, Timothy Harris, appeals the denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner received the effective assistance of counsel at trial. The judgment is affirmed.

The Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends that the guilty pleas he entered were not knowing and voluntary because the sentences imposed by the trial court are illegal. Following a thorough review of the record and applicable law, we reverse the judgment of the trial court summarily dismissing the petition. We remand this case to the trial court for further proceedings.

The Defendant was convicted of possession of a controlled substance with the intent to sell, possession of a controlled substance with the intent to deliver, and evading arrest while operating a motor vehicle. On appeal the Defendant contends that the evidence is insufficient to sustain his convictions. Finding that there exists no reversible error, we affirm the judgments of the trial court.

Petitioner, James L. Moore, has appealed from the trial court's summary dismissal of the petition for writ of habeas corpus filed by Petitioner. The State has filed a motion, pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals, for affirmance of the trial court's judgment. Petitioner opposes the motion. After a thorough review of the record, we grant the State's motion and accordingly affirm the judgment of the trial court.

The appellant, Charles Baldwin, pled guilty to two counts of theft over $10,000. The trial court sentenced the appellant as a Range II offender to concurrent sentences of eight years on each count. The trial court ordered nine months in incarceration followed by community corrections. After violating the conditions of community corrections, the trial court increased the appellant's sentence from eight years on each conviction to ten years on each conviction. The trial court ordered the appellant to serve thirty days of the increased sentence in incarceration before being placed back on community corrections. After the appellant violated the conditions of community corrections for a second time, the trial court simply reinstated the appellant to community corrections. Subsequently, a third violation warrant was issued against the appellant. The trial court determined that the appellant violated, for the third time, the conditions of community corrections and re-sentenced the appellant to ten years on each conviction to be served consecutively in the Department of Correction. The appellant filed a timely notice of appeal challenging the trial court's decision to increase his sentence and order incarceration. For the following reasons, we affirm the judgment of the trial court.

The Defendant, Jordan Hill, was convicted of attempted aggravated robbery and of being a felon in the possession of a handgun. On appeal, he contends that the evidence is insufficient to sustain these convictions. Finding no reversible error, we affirm the judgments of the trial court.

Petitioner, Scott Bradley Price, appeals the denial of his petition for post-conviction relief by the Knox County Criminal Court. Petitioner was convicted for rape of a child and sentenced as a Range I offender, to twenty-one years at one hundred percent, to be served in the Tennessee Department of Correction. On direct appeal, Petitioner challenged only the length of his sentence. This Court affirmed that judgment on November 19, 2001. State v. Scott Bradley Price, No. E2000-00441-CCA-R3-CD, 2001 WL 1464555 (Tenn. Crim. App. Nov. 19, 2001). Petitioner filed a pro se petition for post-conviction relief. The petition was subsequently amended by appointed counsel. In his appeal, Petitioner argues that he was denied effective assistance of counsel because (1) trial counsel did not investigate Petitioner's claims that his audio recorded confession was materially altered; (2) trial counsel did not advise Petitioner to testify in order to rebut the State's evidence; and (3) trial counsel did not use available medical records to challenge the accuser's testimony at trial. We affirm the judgment of the trial court.

A Hamblen County jury convicted the defendant of theft of property, $500-$1,000, and forgery of assignment of title. On appeal the defendant presents three issues: (1) Whether there was sufficient evidence to support the jury's verdict; (2) whether the trial court erred in refusing to grant a retrial based upon newly discovered evidence; and (3) whether the trial court imposed an excessive sentence. We have reviewed the record and have found all of the defendant's issues to be without merit. Therefore, we affirm the judgments of the trial court.

The defendant, Darrell Phillips, appeals the revocation of his probation, arguing that the court had no authority to revoke his suspended sentences because the State did not seek this action until after the sentences had expired. We disagree and affirm the judgment of the trial court.