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 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.

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.

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.
 

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.

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.

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.

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.
 

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.

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.

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 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.

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.

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.

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.

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.

The defendant, Immanuel Eldridge Harney, pled guilty to six counts of sale of one-half gram or more of cocaine, a Class B felony, and pursuant to a plea agreement, the Giles County Circuit Court sentenced him to twelve years incarceration for five of the counts and three years incarceration for the sixth count. The court ordered that the defendant serve one of his twelve-year sentences consecutively to the other four and that he also serve the three-year sentence consecutively to the five twelve-year sentences for an effective sentence of twenty-seven years in the Department of Correction (DOC). The defendant appeals from the Giles County Circuit Court order reducing his sentences by six months, claiming that the trial court abused its discretion in failing to grant him a greater reduction. The state appeals, contending that the trial court was without jurisdiction to reduce the defendant's sentence. We hold the trial court was without jurisdiction to reduce the defendant's sentence. We reverse the judgment of the trial court and remand the case for the entry of a corrected judgment.

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.

In 1973, Appellant, Jessie D. McDonald, was convicted, following a jury trial, of the offense of obtaining property by false pretenses. Appellant filed a petition for writ of habeas corpus in the Criminal Court of Davidson County, Tennessee in May 2004, attacking his conviction. According to his petition, the sentence for the conviction expired in May 1979. Upon direct appeal from the conviction, the Court of Criminal Appeals reversed the conviction. However, the Supreme Court of Tennessee reversed the Court of Criminal Appeals and reinstated the judgment. See State v. McDonald, 534 S.W.2d 650 (Tenn. 1976). Appellant has appealed from the trial court's summary dismissal of his petition for writ of habeas corpus relief. The State has filed a motion for this court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

In this case we are asked to construe several instruments related to a parcel of real property. In 1976, Shelby County obtained title to a parcel of property conveyed out of a larger tract and proceeded to construct a water tower on the property. From 1976 to 1982, Shelby County used a gravel road traversing the adjacent lot retained by the original grantor to gain access to the water tower. In 1982, the original grantor proceeded to executea document purporting to grant Shelby County an easement over the gravel road. The original grantor subsequently conveyed the adjacent parcel to a third party, Highway 64 Partners. In 1995, Shelby County entered into a lease agreement with Verizon, allowing Verizon to install a cellular communications antenna on the water tower and granted Verizon an easement over the gravel road. Highway 64 Partners protested Verizon’s use of the gravel road. Verizon filed a declaratory judgment action seeking a declaration of the parties’ rights County, and denied summary judgment to Highway 64 Partners. We affirm.