APPELLATE COURT OPINIONS

This case arises from the divorce proceedings of Husband and Wife. Husband filed for a divorce from Wife, citing inappropriate marital conduct and irreconcilable differences as grounds for a divorce. Wife filed her answer and counterclaim, stating she was entitled to a divorce on the basis of inappropriate marital conduct and adultery. The trial court granted Wife a divorce, established Wife as the primary residential parent of Child, divided the parties’ marital property, set alimony payments Husband must pay to Wife, imposed a lien on Husband’s property to secure the property division and support payments, and awarded Wife a portion of her attorney’s fees incurred as a result of the proceedings. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
 

This case arises out of an action seeking declaratory relief concerning the validity of an arbitration clause in a contract between the parties. Appellee filed a complaint in the Chancery Court at Haywood County for a determination of whether a contract, and, therefore, the arbitration clause in the contract, were invalid because the contract was one of adhesion or executed under duress. The trial court, upon Appellees’ motion to stay arbitration, ordered that the arbitration proceedings should be stayed because there was no agreement to arbitrate. Appellant filed its appeal to this Court, and, for the following reasons, we reverse and remand this case for further proceedings consistent with this opinion.
 

The petitioner, Steve Edward Leach, entered pleas of guilt to first degree murder and rape of a child. The trial court imposed consecutive sentences of life imprisonment without the possibility of parole and 25 years, respectively. There was no direct appeal of the conviction or sentence. Later, the petitioner was denied his application for post-conviction relief. This court affirmed. Steven Edward Leach v. State, No. M1999-00774-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001). Counsel for the petitioner failed to make a timely application for permission to appeal to the supreme court and our supreme court denied a request to waive the 60-day period of limitation as prescribed by Tennessee Rule of Appellate Procedure 11. By motion, the petitioner then applied for relief in the post-conviction court. The post-conviction court found that the petitioner was not at fault for failing to timely file a Rule 11 application but denied relief based upon lack of jurisdiction. In this appeal, the petitioner has asked this court to vacate and re-enter its judgment filed February 16, 2001, in Cause No. M1999-00774-CCA-R3-PC. Because our supreme court has ruled under similar circumstances that the petitioner was not entitled to the effective assistance of counsel and was not denied due process of law, the judgment is affirmed.

This is an action to establish an easement. The plaintiffs’ property adjoins the northern boundary of the defendants’ property. The plaintiffs’ property is landlocked. To access the property, the plaintiffs historically used an old logging road on the northeastern corner of the defendants’ property. In 1998, the defendants made improvements that effectively blocked the plaintiffs’ passage over the old logging road. The plaintiffs filed this lawsuit to establish an easement over the old logging road and to enjoin the defendants from further impeding their use of the easement. After a bench trial, the trial court determined that the plaintiffs had established prescriptive easement and an implied easement over the defendants’ property. The trial court directed the plaintiffs’ expert, a surveyor, to establish the exact property lines between the parties’ properties, and ordered the defendants to restore the plaintiffs’ property to its original state according to those boundaries. From that order, the defendants now appeal. We affirm the trial court’s conclusion that the plaintiffs established a prescriptive easement and an implied easement, and reverse in part and remand for the trial court to allow the parties an opportunity to submit further evidence on the exact boundary line between their properties.

Kenneth Morgan Johnson (“Father”) and Dorothy Lynn Johnson (“Mother”) were divorced in 1998. The parties have two minor children and initially agreed to equal co-parenting time and that neither party would seek child support from the other. A house owned by Father was severely damaged if not destroyed by fire, and the proceeds from a fire insurance policy were deposited with the Trial Court in a separate lawsuit. After Father was sentenced to be incarcerated for seven years for federal drug violations, Mother filed a petition claiming entitlement to the insurance funds being held by the Trial Court because the minor children were in need of support. The Trial Court concluded Mother should be paid $1,034 per month out of the fire insurance proceeds as child support for the parties’ two minor children. Father appeals claiming the Trial Court erred in determining the amount of child support he should be required to pay each month out of the fire insurance proceeds. We affirm the decision of the Trial Court.

The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded.

I agree completely with the majority opinion. I write separately to express my opinion that the statement in State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000) that “[s]etting child support is a discretionary matter,” id. at 248, should not be broadly read. For example, it is clear to me that a trial court has “limited discretion” to deviate from the amount of child support determined by applying the rules set forth in Tenn. Comp. R. & Regs., ch. 1240-2-4- .03. See Jones v. Jones, 930 S.W.2d 541, 544-45 (Tenn. 1996). However, I agree with the majority that the Kaatrude principle set forth above applies to the facts of this case. Finding no abuse of discretion in the trial court’s judgment, I concur.

This is a direct appeal from a conviction of facilitation to commit felony murder. The defendant, Zina Beth Finnell, was indicted for felony murder by a Davidson County Grand Jury in connection with the murder of her step-father during the commission of an aggravated burglary. A jury convicted the defendant of facilitation to commit felony murder, and the trial court sentenced her to 21 years. On appeal, the defendant argues two issues: (1) the trial court erred in denying the defendant's motion to suppress her statement to the police, and (2) there was insufficient evidence to find the defendant guilty of facilitation to commit felony murder. We affirm the judgment of the trial court.

This case involves a claim for procurement of breach of contract. The plaintiff real estate firm sued the defendant real estate firm for procurement of breach of a real estate listing contract. A bench trial was conducted. At the close of the plaintiffs’ proof, the defendants moved to dismiss the plaintiffs’ claims. The trial court noted that, in order to prove procurement of breach of contract, the plaintiffs were required to prove that the defendants acted with “malice.” In order to prove “malice,” the trial court held that the plaintiffs were required to prove that the defendants were “motivated by ill will, hatred or spite.” The trial court found that the plaintiffs had not submitted evidence that the defendants were motivated by ill will, hatred or spite, and therefore held that the plaintiffs could not prove that element of their claim. The plaintiffs’ claim for procurement of breach was dismissed. The plaintiffs now appeal. We reverse, finding that in order to prove malice in this context, the plaintiffs were not required to prove ill will, hatred or spite.

The defendant, Randy David Miles, was convicted by a Franklin County Circuit Court jury of two counts of aggravated rape, a Class A felony, and aggravated kidnapping, a Class B felony, for his participation with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from the street in Northern Alabama and transporting her by car to the defendant's grandmother's abandoned farmhouse in Huntland, Tennessee, where the defendant raped her while his codefendant watched. The defendant was sentenced by the trial court as a Range I, standard offender to concurrent terms of eleven years, nine months for the aggravated kidnapping conviction and twenty-four years, six months for each of the aggravated rape convictions, for an effective sentence of twenty-four years, six months. His Tennessee sentences were ordered to be served concurrently to his Alabama sentence for kidnapping. On appeal, he challenges the sufficiency of the evidence, the State's failure to make a proper election of offenses, and the sentences imposed by the trial court. Following our review, we conclude that one of the aggravated rape convictions is invalid because the facts upon which the State relied to support the separate convictions constitute only one offense. Accordingly, we reverse one of the defendant's convictions for aggravated rape. We affirm the judgments as to the other aggravated rape conviction and the aggravated kidnapping conviction but modify the sentences to twenty-two years and nine years, respectively.

The defendant, Randal Todd Kemper, was convicted of driving under the influence. The trial court imposed a sentence of eleven months, twenty-nine days, with all but forty days suspended. In this appeal of right, the defendant complains that the trial court erroneously admitted the results of his blood alcohol test because the accompanying certificate bore a rubber-stamped signature. The judgment of the trial court is affirmed.

Petitioner, Raymond Roger Jones, appeals the Washington County Criminal Court's dismissal of his pro se combined motion to reopen his post-conviction petition, petition for writ of error coram nobis, and petition for DNA analysis. Petitioner was convicted by a jury in the Knox County Criminal Court of two counts of first degree murder. He received consecutive life sentences. This Court affirmed Defendant's convictions and sentences on direct appeal. See State v. Jones, 735 S.W.2d 803 (Tenn. Crim. App. 1987). Petitioner filed a petition for post-conviction relief in the Washington County Criminal Court. The trial court dismissed the petition, and this Court affirmed. See Raymond Roger Jones v. State, No. 03C01-9102-CR-00068, 1991 Tenn. Crim. App. LEXIS 584, (Tenn. Crim. App. at Knoxville, July 26, 1991), perm. to app. denied (Tenn. 1992). On June 22, 2001, Petitioner filed a pro se motion to reopen his post-conviction petition, alleging that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), established a new rule of constitutional law requiring retroactive application to his case. Petitioner subsequently filed a supplemental request for DNA analysis. The trial court dismissed the motion and denied Petitioner's request for DNA Analysis. Petitioner appeals. After reviewing the record, we affirm the judgments of the trial court.

On May 1, 2003, the defendant, Worley K. Henry, was convicted by a Sullivan County jury of theft of property valued at less than $500, possession of a Schedule IV controlled substance, and tampering with evidence. The trial court sentenced him to eleven months and twenty-nine days each for the theft and possession convictions and six years for the tampering with evidence conviction. The theft and evidence tampering sentences were to run concurrently to each other, but consecutively to the possession sentence. The defendant appealed his convictions for theft of property valued at less than $500 and tampering with evidence. He has alleged that the evidence is insufficient to support verdicts of guilty for these offenses. We affirm the judgments of the trial court.

The defendant appeals his conviction for Class A misdemeanor assault and the refusal of the trial court to impose an alternative sentence of judicial diversion or full probation. After review, we reverse the conviction for the trial court’s failure to instruct on self-defense. In the event of further appellate review, we have considered all issues raised on appeal. The cause is remanded for a new trial.

Appellant has appealed before final judgment was entered. We dismiss the appeal.

The defendant, Ambreco Shaw, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, for shooting a man to death at a Memphis public housing development. The trial court sentenced him as a standard, violent offender to twenty-four years in the Department of Correction, applying four enhancement factors to increase his sentence from the presumptive twenty-year midpoint in the range. In a timely filed appeal to this court, the defendant raised as his sole issue whether the evidence was sufficient to sustain his conviction. However, following the United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. ___ , 124 S. Ct. 2531 (2004), which was released during the pendency of this appeal, the defendant sought and received permission from this court to raise as an additional issue the impact of the Blakely decision on the sentencing imposed in his case. Based on our review of the record, the parties’ briefs, and applicable law, we conclude that the evidence was sufficient to sustain the defendant’s conviction and that two of the four enhancement factors were appropriately applied under Blakely. We further conclude that the applicable factors justify the enhanced sentence in the case. Accordingly, we affirm the judgment of the trial court.

The petitioner appeals the denial of his petition for post-conviction relief, arguing that the postconviction court erred in finding he received effective assistance of counsel and in denying his request to represent himself at the post-conviction proceeding. Following our review, we affirm the denial of the petition.

I concur in the majority opinion. I have chosen to write separately to express concern over two issues that appear from the record and that are not addressed by either party. Admittedly, the record is unclear but the majority opinion concludes that the petitioner originally filed a pro se petition for post-conviction relief, that counsel was appointed, and that the petition was summarily dismissed in August of 1998. In February of 2001, the petitioner again filed a pro se motion to reopen his post-conviction petition, which was granted by the post-conviction court. I found nothing in the record that would support the reopening of the petitioner's original post-conviction relief petition. Next, it appears that the petitioner was appointed counsel and on the second day of the hearing, the petitioner filed a pro se amended petition for post-conviction relief and was allowed an additional day in which to present evidence. This procedure appears to be in conflict with the holdings of our supreme court in State v. William Lee Burkhart, 541 S.W.2d 365. The petitioner in the instant case did not have a constitutional right to participate in propria persona and, simultaneously, be represented by participating counsel.

This appeal involves a dispute between a homeowner and a contractor over the validity of an arbitration award. After the arbitrator awarded the contractor $52,725, the contractor filed a complaint in the Circuit Court for Sumner County to confirm the award and to recover the costs of the arbitration. The homeowner challenged the award on the ground that he had not been afforded a hearing. The contractor filed a motion for summary judgment, a motion to dismiss the homeowner's counterclaim, and a motion for attorney's fees under the arbitration agreement. The trial court, granting the contractor's motions, confirmed the $52,725 arbitration decision and awarded the contractor $500 in arbitration expenses and $2,205 in attorney's fees. The homeowner has appealed. We have determined that the arbitration award must be vacated because of the arbitrator's failure to provide the parties a hearing before rendering his decision.

We granted the State’s application for permission to appeal to determine whether the Court of Criminal Appeals erred by reversing the defendant’s conviction for premeditated first degree murder and his sentence of death. Upon review, we hold that the Court of Criminal Appeals erred in reversing the defendant’s conviction and sentence. In particular, we conclude that the trial court did not err by failing to instruct the jury on facilitation and solicitation or by permitting the medical examiner to display the victim’s cleaned and reconstructed skull as a demonstrative aid during his testimony; that the prosecution did not present inconsistent theories and evidence in the separate trials of the defendant and co-defendant Prentiss Phillips; and that the sentence of death is not disproportionate considering the circumstances of the crime and the defendant. Having reinstated the defendant’s conviction and sentence, we have also reviewed and considered all other errors alleged by the defendant and conclude that none warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part, affirmed in part, and the judgment of the trial court is reinstated.

The petitioner, Vincent Hatch, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.