APPELLATE COURT OPINIONS

The petitioner, Mario Leggs, appeals from the trial court's dismissal of his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

The majority concludes that the defendant’s statement to Sheriff’s Investigator Lowe was voluntarily given. For the reasons expressed below, I am unable to join in this conclusion.

I concur in all aspects of the majority opinion except (1) the majority’s treatment of the trial court’s decree pertaining to Wife’s right, for a period of time, to the exclusive possession and occupancy of the former marital residence; and (2) the majority’s handling of the issue of whether the assets of Husband’s law practice are marital assets.

This is a legal malpractice case. Client/Appellant sued Attorney/Appellee for legal malpractice for failure to respond to a motion for partial summary judgment filed by the defendant in the underlying case. Attorney’s Motion for Summary Judgment was granted and Attorney was awarded attorney fees on his Cross-Complaint. Client appeals. We reverse and remand.

In this divorce action, the Trial Court awarded the wife custody of the children with visitation to the husband, set child support and alimony in futuro to the wife, and divided the marital property. As per the marital property division, the wife was awarded 60% interest in the marital home and the husband 40%, with the right of the mother to remain in the home until the children reach age 18, and the husband was required to pay for the upkeep of the home. Further the wife was ordered to pay 40% of the taxes and insurance and the husband 60% until the property was sold. On appeal we affirm the Trial Court’s Judgment with modifications. The husband will be allowed to utilize a care taker, if necessary, during visitation; the marital home will be sold within two years and the proceeds divided as decreed by the Trial Court. Following the sale the Trial Court is instructed to determine a new amount and duration of the alimony award.

The Petitioner, Martin E. Walker, filed a petition for writ of habeas corpus seeking relief from an allegedly void judgment, which the habeas corpus court dismissed. On appeal, the Petitioner contends that the habeas corpus court erred in dismissing his petition because: (1) count one of the indictment charging him with murder is defective because it did not provide notice of the offense charged; (2) the indictment is invalid because the district attorney failed to sign it; and (3) the State failed to comply with the trial court's order for a bill of particulars. Finding no error in the judgment of the habeas corpus court, we affirm the dismissal of the Petitioner's petition for habeas corpus relief.

The defendant, Derwood Scott Kendrick, was on probation for several convictions of attempted misapplication of contract funds and one (1) conviction of illegal voting. While on probation, the defendant was arrested for theft, misapplication of contract funds and passing worthless checks. The trial court held a probation revocation hearing. At the conclusion of the hearing, the trial court revoked the defendant's probation. The defendant appealed this revocation on the grounds that: (1) the trial court erred in refusing to divest the media privilege for a news reporter and (2) there was insufficient evidence for the trial court to revoke his probation. We have analyzed the issues and find that the trial court did not err in refusing to divest the media privilege. However, we also find that the evidence does not support the revocation of the defendant's probation. We affirm in part and reverse in part the decision of the trial court, and remand for further proceedings in accordance with this opinion.

I respectfully dissent. The question in this case is whether, when a will includes a residuary clause with two or more beneficiaries, a lapsed residuary gift is to be distributed among surviving residuary beneficiaries or among the testator’s intestate heirs. The majority reaffirms Ford v. Ford, 31 Tenn. 431, 435 (1852), which holds that a lapsed residuary gift passes via intestate succession. I would overrule Ford and hold that where the residue of a will is devised to two or more persons and the share of one fails, that share passes to the other residuary devisees in proportion to their residuary interests. See Unif. Probate Code § 2-606(b), 8 U.L.A. 427 (1998); see also Restatement (Third) of Property: Wills & Other Donative Transfers § 5.5 cmt. o (1999).1 Consequently, in this case I would distribute the lapsed residuary gifts proportionally among the surviving residuary beneficiaries of the McFarland will rather than via the laws of intestate succession.

The appellant, Earl D. Mills, pled guilty to vehicular homicide. As a result of the guilty plea, the remaining nine (9) counts of the indictment were either merged with the vehicular homicide conviction or nolle prossed by the State. The trial court sentenced the appellant to twelve (12) years as a multiple offender. At the sentencing hearing, the appellant sought pre-trial jail credit for the 197 days he spent in jail prior to his guilty plea. The trial court denied the request because the appellant was serving a sentence on an unrelated probation violation charge while awaiting trial on the charges arising out of the indictment for vehicular homicide. The appellant filed a motion to reconsider. The trial court granted the motion and awarded the appellant thirty-six (36) days of jail credit. However, the appellant insists he should receive credit for the entire 197 days. For the following reasons, we affirm the judgment of the trial court.

The Petitioner, William J. Carico, was convicted of aggravated rape, and the trial court sentenced him to twenty-five years in prison. Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition as untimely. On appeal, the Petitioner contends that Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) announced a new rule of constitutional law that applies retroactively to his case and creates an exception to the one-year statute of limitations for filing a post-conviction petition. Finding no reversible error, we affirm the judgment of the post-conviction court.

We granted this appeal to determine whether the trial court properly dismissed the wife’s complaint for “fraud, deceit, and coercion” after finding that her complaint failed to state an independent action upon which to set aside a final divorce decree. The Court of Appeals affirmed. After reviewing the record and applicable authority, we conclude that the wife failed to allege sufficient facts to support either an independent action to set aside the final divorce decree under Rule 60.02 of the Tennessee Rules of Civil Procedure or a separate common law cause of action for fraud. Accordingly, the Court of Appeals’ judgment is affirmed on the grounds set forth in this opinion.

The defendant, Lamonn Lee Harris, entered an open guilty plea to fourteen counts of forgery, Class E felonies, and one count of theft less than $500.00, a Class A misdemeanor. He was sentenced to an effective sentence of six years as a Range I, standard offender. On appeal, he argues that the trial court erred in denying alternative sentencing and in imposing an excessive sentence. Following our review, we affirm the judgments of the trial court.

We granted this appeal to determine whether a defendant who was found 100% at fault in a negligence action submitted to arbitration was liable for the full amount of the plaintiff's damages where the plaintiff had already received half of the amount of damages in a settlement with another defendant. The Court of Appeals concluded that the arbitrator had exceeded his scope of authority by requiring the defendant to pay the full amount of damages and modified the judgment. After reviewing the record and applicable authority, we conclude that the trial court correctly determined that the arbitrator did not exceed his authority and that the defendant was not entitled to a credit based on the amount of damages received by the plaintiff in a settlement. Accordingly, the Court of Appeals' judgment is reversed, and the trial court's judgment is reinstated.

I agree with the majority opinion that the defendants owed a duty to the plaintiff and, viewing the evidence in the light most favorable to the plaintiff, that there are genuine issues of material fact as to cause in fact and proximate or legal cause. I continue, however, to adhere to my previous position that the majority’s analysis blurs the line between duty and legal causation by improperly encouraging “the trial court to usurp the role of the jury in weighing the reasonableness of the defendant’s conduct.” Burroughs v. Magee, 118 S.W.3d 323, 339 (Tenn. 2003) (Holder, J., concurring and dissenting).1

The defendant, Ricky Estes, was convicted of burglary of an automobile, theft under $500.00, and possession of drug paraphernalia. The trial court sentenced the defendant as a multiple offender to four years, eleven months, and twenty-nine days. On appeal, the defendant raises the following issues: (1) whether the trial court erred in denying his pre-trial motion for a continuance; (2) whether the evidence is sufficient to support his convictions; and (3) whether the trial court erred in sentencing the defendant. Upon review, we affirm the judgments of the trial court.

We granted review to determine whether the property owners owed a duty to a person injured off the owners’ property as a result of a hazard existing on the owners’ property and if so, to determine whether the hazard was the cause of the injury. The trial court granted summary judgment to the defendant property owners, and the Court of Appeals affirmed. After carefully reviewing the record and applicable authority, we conclude that the defendants owed a duty of care to the plaintiff to ensure that the sidewalk was not obstructed by overgrown bushes and was passable. Viewing the evidence in the light most favorable to the plaintiff, there are genuine issues of material fact as to whether the defendants’ breach caused her injury. We therefore reverse and remand for further proceedings. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Case Remanded to the Trial Court
 

This case involves the authority of the General Sessions Court to set aside its own judgment. The plaintiff’s decedent died in January 2000. In January 2001, the plaintiff filed a medical malpractice claim in the General Sessions Court against the defendants. In April 2001, the General Sessions Court entered an order dismissing the case, without prejudice, for lack of prosecution. The General Sessions Court later determined that the order dismissing for lack of prosecution was erroneously entered. Consequently, in May 2001, the General Sessions Court entered a consent order setting aside its April 2001order. In December 2001, the plaintiff voluntarily nonsuited the General Sessions lawsuit, and the General Sessions Court entered a consent order of dismissal without prejudice. In June 2002, the plaintiff refiled her lawsuit in the Circuit Court below. The defendants filed motions for summary judgment based on the statute of limitations, claiming that the plaintiff was required to refile her lawsuit within one year of the April 2001 General Sessions order, dismissing for lack of prosecution. The defendants asserted that the General Sessions Court was without authority to adjudicate the matter further after the April 2001 order of dismissal was entered.  The Circuit Court disagreed and denied the defendants’ motions for summary judgment. The defendants were granted permission to file this interlocutory appeal. We reverse, concluding that the General Sessions Court did not have the authority to set aside its April 2001 judgment.

The defendant, Beverly Dixon, pleaded guilty to one count of felony Class B theft of property over $60,000. The trial court imposed an incarcerative eight-year sentence and denied any form of alternative sentencing. On appeal, the defendant argues that the sentencing process was flawed by the introduction of prejudicial hearsay and that the trial court should have granted probation or placement into a community corrections program. We affirm the judgment of the trial court.

The appellant, Ericonta Daman Flenoid, pled guilty in the Sumner County Criminal Court to aggravated burglary and robbery. He received a total effective sentence of ten years, with one year to be served in confinement and the remainder on probation. Subsequently, the trial court revoked the appellant's probation, finding that the appellant failed to comply with the terms of probation. The trial court ordered the appellant to serve his sentences in confinement. The appellant appeals. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

We granted permission to appeal in this case pursuant to Tennessee Rule of Appellate Procedure 11 to determine the legality of the defendant’s sentence. The defendant, Amy Denise Sutton, was convicted by a jury of theft of property valued between $1,000 and $10,000. The trial court sentenced her to confinement for one year, followed by two years in community corrections. On appeal, she contends that because the length of her confinement exceeds her estimated release eligibility date of 10.8 months, her sentence is illegal. The defendant also challenges the sufficiency of the convicting evidence. Because we conclude that the defendant’s release eligibility date is a mere possibility and not a right, we find the sentence to be valid. Further, we conclude that sufficient evidence was presented for a rational jury to convict the defendant of the charged offense. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

A Madison County Circuit Court jury convicted the defendant, Chester Floyd Cole, of incest, a Class C felony, and assault, a Class B misdemeanor, and the trial court sentenced him as a Range I, standard offender to five years for the incest and six months for the assault1 to be served concurrently in the Department of Correction. The defendant appeals, claiming the trial court erred in failing to dismiss the incest count pursuant to Rule 8, Tenn. R. Crim. P., and State v. Dominy, 67 S.W.3d 822 (Tenn. Crim. App. 2001), and that his sentence is excessive. We affirm the trial court.

In this medical malpractice case involving the alleged wrongful death of Walter Ray Alsip ("Mr. Alsip" or "the deceased"), we granted the plaintiffs' Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order allowing defense counsel to engage in ex parte dialogue with Mr. Alsip's last-illness, non-defendant treating physicians. We conclude that the trial court erred in entering the order that permitted defense counsel to have private conversations with the non-defendant physicians who treated the deceased during his last illness. Accordingly, we reverse the trial court's order.

The appellant, Ericonta Daman Flenoid, pled guilty in the Sumner County Criminal Court to aggravated burglary and robbery. He received a total effective sentence of ten years, with one year to be served in confinement and the remainder on probation. Subsequently, the trial court revoked the appellant's probation, finding that the appellant failed to comply with the terms of probation. The trial court ordered the appellant to serve his sentences in confinement. The appellant appeals. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

This is a medical negligence case brought by a state prisoner. The plaintiff prisoner alleges injury stemming from an act of medical negligence by a state employee in August 2001, while the plaintiff prisoner was in state custody. In March 2002, the prisoner erroneously filed a lawsuit in chancery court, which was dismissed in January 2003. In February 2003, the prisoner filed the instant claim with the claims commission. The claims commission found that the statute of limitations was not tolled by the filing of the chancery lawsuit because the Attorney General had not agreed to transfer the chancery lawsuit, and dismissed the claim as untimely. The plaintiff prisoner appealed. This Court reversed the dismissal on the basis that the agreement of the Attorney General to the transfer was no longer required, and remanded for further proceedings. On remand, the claims commission found that the plaintiff prisoner’s claim was not in the class of cases eligible for transfer from chancery court, and on that basis again dismissed the plaintiff prisoner’s complaint as being untimely. The plaintiff prisoner again appeals. We affirm, concluding that the statute of limitations was not tolled by the erroneous filing of the chancery court lawsuit, and that consequently the plaintiff prisoner’s claim with the claims commission was untimely.

The appellant, Chris Ebbs, pled guilty in May of 1996 to attempted aggravated sexual battery and was sentenced to six (6) years in the Department of Correction. The trial court suspended the sentence to probation for six (6) years conditioned upon various requirements. In June of 2001, a probation violation warrant was filed. As a result, the trial court revoked the appellant's suspended sentence and ordered the appellant to serve the six-year sentence in confinement. On appeal, the appellant challenges the trial court's decision to revoke probation. After a review of the record and applicable legal authorities we conclude the judgment of the trial court must be affirmed.