APPELLATE COURT OPINIONS

This custody case involves two parents who have never been married and have not been involved in any prior custody determination regarding the child at issue. Father had never seen the child prior to filing this custody action and had not spoken with Mother since the child's birth in 1992. He was served with a paternity action in November 2001 and adjudicated to be the child's father. On June 4, 2002, he filed this custody action. The trial court determined that custody should remain with Mother and adopted a parenting plan offered by Mother. Father appealed. We affirm the trial court's determination.

Following a jury trial, Defendant, Clifford Rogers, was convicted of premeditated first degree murder, felony murder, and aggravated assault. Defendant received an effective sentence of life plus fifteen years for his convictions. In this appeal as of right, Defendant challenges the sufficiency of the convicting evidence and the trial court’s order of consecutive sentencing. Because the trial court erroneously entered judgments of convictions for the offenses of premeditated first degree murder and felony murder, rather than merging the two offenses at sentencing, we merge Defendant’s conviction for felony murder with his conviction for premeditated murder and remand this case for entry of judgments consistent with this opinion. In all other respects, the judgments of the trial court are affirmed.

This is a premises liability case. Tracie Marie Shipwash and Dennis Marine sued Meadowood Apartments ("Meadowood") to recover for damage done to their respective vehicles when a tree located near a parking area at the apartment complex fell on the vehicles during a severe storm. At the bench trial below, the plaintiffs offered the testimony of a tree expert, who opined that his examination of photographs of the fallen tree revealed signs of deterioration and that the tree should have been removed prior to the storm. The trial court held that the tree removal service hired by Meadowood to make an annual inspection of the apartment property was Meadowood's agent, and that, as a consequence of this fact, Meadowood is liable based upon its imputed constructive notice of the dangerous condition created by the tree's condition. Meadowood appeals. We reverse.

This appeal involves the financial aspects of a divorce decree filed by the Circuit Court for Davidson County. The husband takes issue with the apportionment of the marital debts, the amount of child support, and the award of spousal support. We affirm the trial court.

Phil Mitchell ("Plaintiff") sued his next-door neighbors, John Van Zyll ("Van Zyll") and Ann Furlong ("Furlong"), for malicious prosecution. Plaintiff alleged that Van Zyll and Furlong "caused to be issued against [him] a criminal warrant for his arrest, alleging aggravated assault and reckless endangerment." The criminal charges against Plaintiff were dismissed. Defendants filed a motion for summary judgment, which the Trial Court granted as to Furlong but denied as to Van Zyll. Plaintiff appeals the Court's ruling in favor of Furlong. We affirm.

Defendant, Stevan Craig Mullen, was indicted by the Franklin County Grand Jury for driving with an alcohol concentration of .10 or more, in violation of Tenn. Code Ann. § 55-10-401, and for reckless driving, in violation of Tenn. Code Ann. § 55-10-205. Following a jury trial, Defendant was convicted of driving with an alcohol concentration of .10 or more and acquitted of reckless driving. Defendant was sentenced to eleven months and twenty-nine days, with all but forty-eight hours of his sentence suspended. In addition, his driver’s license was revoked for one year, and he was ordered to perform 100 hours of public service work and fined $350.00. In this appeal as of right, Defendant challenges the trial court’s denial of his motion to suppress his breathalyzer test results. After reviewing the record, we affirm the judgment of the trial court.

This case involves a claim for payment from Defendant for goods and services provided by Plaintiff to Defendant under an oral contract. Originally, the claim was brought in the General Sessions Court for Decatur County. Defendant first challenged the venue of Decatur County, which was rejected by General Sessions Court. Defendant appealed the judgment of the General Sessions Court to the Circuit Court, which also denied Defendant’s motion to dismiss for improper venue and awarded Plaintiff the amount claimed under the terms of the contract. Defendant appealed to this Court and we affirm.

This appeal arises from a divorce proceeding involving a state prisoner and his wife. After the wife filed her divorce complaint in the Chancery Court for Cheatham County, the prisoner counterclaimed for divorce and served interrogatories on his wife regarding their separate and marital property. Two motions to compel the wife to answer these interrogatories were unresolved when the trial court conducted a bench trial in the prisoner’s absence and granted the wife a divorce. The prisoner asserts on this appeal that the trial court erred by failing to dispose of his discovery motions prior to trial. We agree and, therefore, vacate the portions of the divorce decree pertaining to the division of the marital estate.

The Defendant, William C. Tomlin, Jr., was convicted by a jury of aggravated burglary and theft over $1,000. Following a sentencing hearing, the trial court imposed consecutive sentences of fourteen years for the aggravated burglary and ten years for the theft. In this appeal, the Defendant argues that the trial court erred by denying two evidentiary motions, that the evidence is insufficient to support the convictions, and that the trial court erred in sentencing. We modify the aggravated burglary sentence to twelve years and affirm the judgments of the trial court in all other respects.

A Fayette County jury convicted the defendant of promoting prostitution. The trial court sentenced the defendant to five years’ incarceration as a Range III persistent offender. On appeal, the defendant attacks the sufficiency of the evidence and his sentence. We discern no error and affirm the judgment of the trial court.

Following a bench trial in general sessions court, the defendant was convicted of DUI. On the same day, he filed notice of appeal to the circuit court. The circuit court judge’s administrative assistant advised the defendant by letter to appear before the court to set a trial date. The defendant failed to appear as scheduled, and the circuit court dismissed the appeal. The defendant now appeals the circuit court’s dismissal. Because the record does not reveal any notice to or participation by appointed counsel at the circuit court level, we reverse the judgment of the circuit court and remand for further proceedings.

A Shelby County jury convicted the defendant of aggravated sexual battery. The trial court
sentenced the defendant as a career offender to thirty years. The defendant contends on appeal that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

A Shelby County jury convicted the defendant, Finus Rodgers, of aggravated robbery. Following a sentencing hearing, the trial court sentenced the defendant, as a Range I standard offender, to ten years confinement in the Department of Correction. On appeal, the defendant argues that insufficient evidence exists in the record to support his conviction. Our review convinces us that the evidence is legally sufficient, and we affirm the defendant’s aggravated robbery conviction.

The appellant, David Curtis Lynn, was convicted of second offense driving under the influence. As a result, he was sentenced to 11 months and 29 days. He was ordered to serve 90 days in jail and the remainder of his sentence on probation. The appellant apparently violated probation sometime in 2001 and, as a result of that violation, the trial court extended his probation by six months. After a hearing on what appears to be a second probation violation, the trial court entered an order revoking the appellant's probation and ordering him to serve his sentence in confinement. On appeal, the appellant argues that the trial court abused its discretion in revoking his probation and that his sentence had expired at the time the trial court revoked his probation. We affirm the trial court's revocation of the appellant's probation and decline to address the issue regarding the expiration of the appellant's sentence due to an inadequate and incomplete record on appeal.

A Shelby County jury convicted the Petitioner, Darron Clayton, of second degree murder, and the trial court imposed a twenty-year sentence. On appeal, this Court affirmed the conviction and the sentence, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner filed a pro se petition for writ of habeas corpus, and the trial court dismissed the petition without a hearing. Three months later, the Petitioner filed a second petition for writ of habeas corpus raising the same issues as in his first petition, and the trial court again dismissed the petition. On appeal, the Petitioner contends that the trial court erred in dismissing his petition because his sentence is illegal. Finding no reversible error, we affirm the trial court’s judgment.

Stephen Eugene Abercrombie ("Father"), the custodian of the parties' two minor children, filed a complaint against his former wife, Evelyn Marie Abercrombie ("Mother"), seeking to modify the trial court's January 19, 2000, order awarding him custody. That order had directed that, if Father decided to enroll the children in private school, Mother would pay one-half of the children's tuition and other private school expenses. The same order, however, recited that Mother was not required to pay any general child support to Father. In his post-divorce complaint, Father asked the trial court to set a sum certain to be paid by Mother to Father as general child support under the Child Support Guidelines ("the Guidelines"). The trial court declined to modify its previous order and dismissed Father's complaint "on the ground[] that the guidelines currently do not show any . . . child support due." Father appeals, arguing that Mother should be required to pay a set amount of general child support in addition to her obligation to pay one-half of the children's private school tuition and related expenses. We reverse and remand with instructions.

A Bradley County jury convicted the Petitioner, Anthony Reid, of first degree felony murder, especially aggravated robbery, aggravated robbery, attempted aggravated robbery and evading arrest. The trial court imposed an effective sentence of life plus twenty-five years. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel on direct appeal because his counsel failed to raise the issue of the sufficiency of the convicting evidence. Following a hearing, the post-conviction court dismissed the petition. In this appeal, the Petitioner contends that it was "per se" ineffective assistance of counsel for trial counsel to fail to raise the issue of the sufficiency of the convicting evidence on direct appeal. Finding no error, we affirm the trial court's dismissal of the petition.

The Appellant, Kenneth Herring, appeals as of right from the judgment of theWayne County Circuit Court denying his petition for post-conviction relief. Herring was convicted in 1999 of two counts of aggravated sexual battery. On appeal, Herring first argues that his right to due process was violated when the trial court failed to exclude a confession obtained as a result of a “coercive and deceitful” environment during interrogation and that trial counsel was ineffective for failing to seek suppression on this ground. He next contends that trial counsel was ineffective for failing to file a motion to sever the seven indicted offenses, which resulted in his two convictions. After review of the record, dismissal of the petition is affirmed.

In this custody case, the mother appeals the denial of her Tenn. R. Civ. P. 60.02 Motion for Relief from Judgment and Motion for New Trial. The mother’s trial counsel withdrew on the day of the final hearing and the mother failed to appear at the final hearing. After hearing testimony from the father, the trial court found a significant and material change of circumstances had occurred and that it was in the best interest of the parties’ minor children for custody to be changed to the father. The mother contends that her failure to appear at the custody hearing was due to excusable neglect or inadvertence because her attorney had informed her “that the matter should be continued to allow her to obtain new counsel for further litigation in this matter.” For the reasons set out in this opinion, we affirm the judgment of the trial court.
 

I respectfully disagree with the court’s conclusion that Ms. Rhoads is not entitled to Tenn. R. Civ. P. 60.02(1) relief from the June 26, 2002 order removing her children from her custody. Her lawyer mishandled her case in three significant ways. First, he set the hearing on his motion to withdraw as Ms. Rhoads’s counsel on the same day as the final custody hearing. Second, he told Ms. Rhoads that the case would most likely be continued until August 2002 after his motion was granted. Third, he did not tell Ms. Rhoads that her presence was required at the June 25, 2002 hearing.

This is a dispute between the former tenant of a grain storage facility and the new owners of the premises who acquired the property at a foreclosure sale. The issues in dispute are whether the tenant was a bailor or a holdover tenant following foreclosure and the fair market storage or rental value of the premises. The trial judge ruled that the former tenant was a holdover tenant and that the previous rental rate was the fair market rental value for the holdover period. We affirm.

The petitioner appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that his trial counsel provided effective assistance at trial and on appeal. Following our review, we affirm the denial of the petition.