APPELLATE COURT OPINIONS

On appeal, the defendant asserts a breach of due process based on the absence of the violation warrant from the record at the time of his probation violation hearing. After careful review, we conclude that a copy of the warrant was admissible, under Tennessee Rule of Evidence 1003, to prove the defendant had notice of the claimed violations and the evidence against him. We affirm the judgment of the trial court.

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The appellant, Shawn Rafael Bough, was convicted by a Knox County Jury of felony murder and especially aggravated robbery. The original opinion of this Court in this matter was released on January 12, 2004, and the appellant filed an application for permission to appeal. See State v. Shawn Rafael Bough, No. E2002-00717-CCA-R3-CD, 2004 WL 50798 (Tenn. Crim. App. at Knoxville, Jan. 12, 2004), affirmed in part, reversed in part, and remanded by State v. Bough, ___ S.W.3d ___, 2004 WL 2481367. The supreme court granted the permission to appeal on May 24, 2004. In our original opinion, we determined that (1) because the appellant's first motion for new trial was not timely filed in regards to the felony murder conviction and an untimely notice of appeal resulted, the appellant waived all issues except for sufficiency of the evidence in regards to the felony murder conviction; (2) because the appellant's amended motion for new trial and second amended motion for new trial were likewise deemed untimely by this Court, the only other issues remaining were those raised in the initial motion for new trial that relate to the conviction for especially aggravated robbery. As a result of the procedural determinations, we addressed the following issues in regards to the conviction for especially aggravated robbery on direct appeal: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; (2) whether the evidence was insufficient to support the conviction for especially aggravated robbery; and (3) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. As a result, we concluded that the evidence was sufficient to sustain the convictions. Further, we could find no error requiring reversal of the judgments of the trial court. The supreme court determined on appeal that the original motion for new trial, as well as the two amended motions for new trial, were timely filed as to both convictions, effectively affirming in part, reversing in part, and remanding the case to this Court for consideration of the issues that were pretermitted by our procedural rulings in the original opinion. See State v. Bough, ___ S.W.3d ___, 2004 WL 2481367 (Tenn. 2004). The following issues were not addressed by this Court due to our determination that the motion for new trial was untimely as to the appellant's felony-murder conviction and thus must be addressed on remand: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; and (2) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. The following issues were pretermitted on direct appeal by our conclusion that the amended motion for new trial was untimely: (1) whether the trial court erred by admitting the 911 tape of the victim; (2) whether the trial court erred in allowing jurors to take notes and ordered the notes to be destroyed prior to deliberation; (3) whether the trial court erred in allowing the State to exhibit the appellant and the co-defendant to the jury shortly before the 911 tape was played; (4) whether the trial court erred in allowing the State to infer criminal conduct of the appellant due to his association with known criminals and drug dealers. After consideration of these remaining issues, we affirm the judgment of the trial court.

This case presents the interpretation of a transfer restriction clause in an LLC operating agreement.  The plaintiffs filed a motion for summary judgment requesting a declaration that the defendant, by negotiating for the sale of its interest in the LLC and granting a third-party buyer an option to purchase defendant’s interest, had triggered the plaintiffs’ preemptive purchase rights under the operating agreement. The defendants filed a cross-motion for summary judgment arguing that the transfer restriction clause in the operating agreement was triggered only by written notice of the intent to sell, which was never given. The trial court found that, under the language of the operating agreement, the plaintiffs’ preemptive purchase rights were triggered by the“desire or wish” of the selling member to transfer its interest and that the defendant had the desire or wish to transfer its membership interest in the LLC. The defendant appeals. We affirm.

This appeal comes to the court from the trial court's approval of a special master's report. The case was referred to a special master following a jury trial after which appellee Harlan was awarded 16.79% ownership in certain real property which appellant Soloman had purchased. The report did not consider depreciation and other deductions which Harlan had claimed in connection with his alleged ownership of the property. After the court adopted the report Soloman moved to amend the order, arguing that she was entitled to an 83.21% share of those deductions, and that the trial court should amend the report to conform with the motion. The trial court refused. Soloman appeals. We affirm.

The Petitioner, Robert Gentry Galbreath, was convicted by a jury of twelve counts of obtaining a prescription drug by fraud. The trial court sentenced the Petitioner to thirty-six years, as a career offender at sixty percent. On direct appeal, this Court affirmed the Petitioner's convictions and sentence. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed. The Petitioner now appeals, contending that the post-conviction court erred because: (1) the trial court improperly failed to instruct the jury on the lesser-included offense of facilitation; (2) his trial counsel was ineffective; (3) his appellate counsel was ineffective; and (4) his sentence amounts to cruel and unusual punishment. Because we have concluded that the Petitioner's counsel was ineffective at trial and on appeal, for failing to request a jury instruction on the lesser-included offense of facilitation and failing to appeal the jury instruction issue; we reverse the post-conviction court's dismissal of the Petitioner's petition for post-conviction relief, reverse the original convictions, and remand for a new trial.

The defendant, Michael Edward Thomason, was convicted by a Cheatham County Circuit Court jury of first degree premeditated murder and sentenced to life imprisonment. In a timely appeal to this court, he argues that the trial court erred in its instructions on self-defense; the evidence was insufficient to show a premeditated murder; and the prosecutor made an improper comment in his closing arguments to the jury. Finding no reversible error, we affirm the judgment of the trial court.

In two separate civil actions, the plaintiffs, John Doe 1, Jane Doe 1 and John Doe 2 brought claims of reckless infliction of emotional distress against the defendant, the Roman Catholic Diocese of Nashville. The lawsuits were consolidated for certain pretrial purposes and also for purposes of appellate review. The trial court denied in part the plaintiffs' motion to compel the defendant to provide answers to discovery and ultimately granted the defendant summary judgment as to all plaintiffs. On appeal, the Court of Appeals, holding that reckless infliction of emotional distress must be based on conduct that was directed at the plaintiff, affirmed summary judgment for the defendant. The Court of Appeals also declined to consider the plaintiffs' appeal of the partial denial of their motion to compel, regarding the issue as moot. We granted the plaintiffs' application for permission to appeal. After carefully considering the relevant authority, we hold that to be actionable, reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff. Applying this holding, we conclude that the defendant is not entitled to summary judgment. Furthermore, in light of our holding, we vacate the trial court's denial of the plaintiffs' motion to compel. We remand this case to the trial court for further proceedings consistent with this opinion, including reconsideration of the plaintiffs' discovery requests.

Father/Appellant filed a Petition in Opposition to Mother’s Relocation with the Minor Child.
Trial court found that parents did not exercise substantially equal parenting time under the Parental Relocation Statute, T.C.A. § 36-6-108, and allowed Mother/Appellee to move with the minor child. Father appeals. We affirm.
 

I agree with the result reached by the majority and generally with the reasoning, but write
separately only on the issue of how the amount of time each parent spends with the child is
calculated, both by the majority and by the trial court. The trial court here looked only at the number
of overnight stays the child had with each parent, and indeed that is typically accurate and easily
ascertained. In some cases, however, it can be misleading, and I believe this is such a case. Here, the child would regularly spend the entire day, through the evening meal, with Father and would be returned to Mother in time for bed. In such a case, the trial court should look at the totality of the circumstances in comparing each parent’s time with their child. I concur in the result reached by the majority because, in this case, I do not believe that looking at the totality of the circumstances would affect the outcome. But where, as here, an involved, dedicated father will have his relationship with his daughter deeply affected by the mother’s relocation, the time each parent spends with the child should be measured as accurately as can reasonably be done.
In all other respects, I concur fully with the majority opinion.

The petitioner, Torian Benson, has filed a pro se petition to rehear in this case. We note that the petitioner is represented by counsel and pro se petitions are not permitted in such cases. Nevertheless, having considered the merits of the petition to rehear, it is respectfully denied.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 55 percent permanent partial disability for the loss of one arm and one leg, a combined scheduled injury, without separately computing each scheduled injury award.  Defendants insist it was error to award benefits in this manner. Judgment of the trial court is affirmed.

We granted permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether the retained earnings of an S corporation should be treated as income to the sole or majority shareholder of the corporation for the purpose of calculating child support in accordance with the Tennessee Child Support Guidelines. We conclude that absent a showing that the retained earnings are excessive or that an obligor is actually manipulating his or her income, the retained earnings of an S corporation should not be imputed as income to the sole or majority shareholder in calculating a child support obligation. Because there was no showing in this case that the retained earnings were excessive or that the obligor-father manipulated the funds of the S corporation to reduce his child support obligation, we hold that the trial court and the Court of Appeals erred by imputing to him as income the company's retained earnings. Further, we hold that the lower courts erred by failing to include the economic value of the obligor-father's company car in its calculation of income. Finally, we hold that the trial court and the Court of Appeals erred by not granting the obligee-mother's petition to have the obligor pay her attorney's fees in this cause. Based on the foregoing, we reverse the judgment of the Court of Appeals and remand to the trial court for a determination of child support that is consistent with this opinion and for a determination of attorney's fees.

This is a post-divorce alimony case. The parties were divorced in 1995 and the mother was awarded rehabilitative alimony for seven years. In 2003, the trial court extended the rehabilitative alimony until the youngest of the parties’ four children graduated from high school. The extension of alimony was based on the demands of being the primary residential parent for the parties’ four young sons, two of whom were found to have learning disabilities. The father appealed the extension of rehabilitative alimony. We affirm.
 

I join with the majority in concluding that the record is insufficient to justify the imposition of consecutive sentences and that the defendant’s length of sentences requires modification.

The appellant, Barabbas A. Brown, appeals the Knox County Criminal Court's dismissal of his motion to correct pre-trial jail credits. The appellant argues that the trial court erred by not enforcing its order of judgment granting him pre-trial jail credits. Finding no merit to the appellant's contentions, we affirm the trial court's decision.

The petitioner, Dwayne Cook, appeals the trial court's denial of his motion to reconsider the denial of his request to set aside his guilty plea and his alternative petition for writ of error coram nobis. The State has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court properly denied relief as the pleadings were untimely filed and without merit. Accordingly, the judgment of the trial court is affirmed.

Defendant, Ronald Bowman, was indicted for identity theft with the intent to avoid a court appearance. Defendant was convicted by a jury of the charged offense. Defendant was sentenced as a Range I standard offender to serve three years in the workhouse. In this appeal, Defendant argues that: (1) the trial court erred by not instructing the jury as to any lesser included offenses of identity theft; and (2) the evidence is insufficient to support his conviction. After a thorough review, we affirm the judgment of the trial court.

In this action to terminate the parental rights of the mother, ABB, to LJB, Jr., and EJB, the Juvenile Court ordered ABB's rights terminated, and the mother has appealed. We affirm.

Because I believe that the trial court erred by failing to charge fraudulent use of a driver’s license as a lesser included offense of identity theft, and because I cannot conclude that the error was harmless beyond a reasonable doubt, I would reverse the defendant’s conviction and remand the matter for a new trial.

Plaintiff brought a replevin action against defendant to recover his motor vehicle which had been seized by the defendant. The action was initiated in Sessions Court, but transferred by agreement of the parties to Circuit Court. The trial court entered Judgment on behalf of the plaintiff for $8,500.00, having found that the defendant had sold plaintiff's vehicle. We affirm.

This is a medical battery case. The plaintiff went to the hospital suffering from a kidney stone, and
was admitted for observation. The next morning, the plaintiff was told that he was scheduled to
undergo a procedure to remove the stone. Soon, the defendant physician came to see the plaintiff
and told him that he would be performing an invasive procedure which required significant recovery time. According to the plaintiff, the plaintiff then asked the defendant physician whether his treating urologist had approved of the procedure. The defendant physician responded that he had spoken with the urologist and that the urologist had approved the procedure. The plaintiff then signed a consent form, and the procedure was performed. The plaintiff later learned that the defendant physician had not spoken with his urologist, and that the urologist did not approve the procedure. The plaintiff sued the defendant physician and his medical group for medical battery. The trial court granted summary judgment in favor of the defendants. The plaintiff now appeals. We reverse, finding that a genuine issue of material fact exists as to whether the plaintiff’s consent to surgery was vitiated by the defendant physician’s alleged misrepresentation of fact.
 

This child custody case presents the following issues: (1) whether the trial court erred in awarding the father custody of the parties' child and (2) whether the trial court erred in ordering the father to pay the mother's attorney fees. We hold that the trial court considered the relevant statutory factors and that the evidence does not preponderate against the trial court's award of custody to the father. We hold that the trial court did not abuse its discretion in ordering the father to pay the mother's attorney fees. Although not raised as an issue on appeal, we note that the father did not request child support from the mother and the trial court did not set child support. We hold that the father did not have the right to waive child support. Accordingly, we affirm the trial court's judgment regarding custody of the child, affirm the award of attorney fees, and remand this cause to the trial court for determination of the mother's child support obligation to the father.

A Shelby County jury convicted the defendant, Lawrenzo Menton, of two counts of aggravated robbery and two counts of kidnapping, and the trial court sentenced him to twelve years for each robbery with the second count to be served consecutively to the first and six years for each kidnapping with both counts to be served concurrently with each other and with the second robbery count for an effective total sentence of twenty-four years in the Department of Correction. On direct appeal, the defendant contended, among other things, that the trial court erred in ordering consecutive sentencing. This court agreed and remanded the case to the trial court for a determination of the basis for the imposition of consecutive sentences. State v. Lawrenzo Menton, No. W2002-00267-CCA-R3-CD, Shelby County, slip op. at 1 (Tenn. Crim. App. July 2, 2003), app. denied (Tenn. Dec. 15, 2003). At the resentencing hearing, the trial court once again ordered that the defendant serve his robbery sentences consecutively. The defendant appeals, claiming that the trial court abused its discretion in ordering consecutive sentencing and that the trial court’s imposition of consecutive sentences violates the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). We hold that the record is insufficient to justify the trial court’s imposition of consecutive sentences and that because the defendant’s case is still on direct appeal, plain error requires us to modify the defendant’s sentences in light of Blakely to eight years and six months for each aggravated robbery conviction and three years and six months for each kidnapping conviction.

This is an appeal as of right from a conviction of second degree murder. The Defendant, Douglas V. Killins, was indicted for first degree murder and found guilty by jury verdict of the lesser-included offense of second degree murder. The trial court sentenced the defendant as a Range II violent offender to thirty-eight years to be served in the Department of Correction. On appeal, the Defendant claims there was insufficient evidence for the jury to find him guilty of second degree murder. We affirm the judgment of the trial court.

The Defendant, Tarus A. Sircy, appeals from the trial court's denial of his petition seeking habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The State's motion is granted. The judgment of the trial court is affirmed.