APPELLATE COURT OPINIONS

We granted review in this case to determine the appropriate manner of distributing lapsed residuary gifts in a will. Specifically, we are confronted with a holographic will containing a residuary clause which devised percentages of the testatrix’s estate to certain named beneficiaries. Three of these beneficiaries predeceased the testatrix, causing their gifts to lapse. Because these beneficiaries also died without issue, the Tennessee anti-lapse statute is not applicable.1 Thus, the question presented is whether the lapsed residuary gifts are to be divided among the remaining residuary beneficiaries or pass through intestate succession to the testatrix’s heirs at law. The probate court concluded that the lapsed gifts created a partial intestacy, and the lapsed gifts passed to the heirs at law. The Court of Appeals affirmed. Upon review, we affirm the judgment of the Court of Appeals. Tenn. Rule App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed.
 

The Appellant, Roy Allen Burch, appeals the Hawkins County Criminal Court's summary dismissal of his petition for post-conviction relief. In his petition, Burch seeks relief from his 1989 life sentence for aggravated rape. He contends that the sentence violates the recent Supreme Court decision in Blakely v. Washington, 524 U.S. __, 124 S. Ct. 2531 (2004), because the trial court applied enhancement factors not found by the jury in increasing his sentence. On appeal, Burch argues that the Blakely holding announces a new rule of law and is, thus, entitled to retroactive application in a post-conviction proceeding. After review, we conclude that the issue has been rendered moot by the recent Tennessee Supreme Court opinion, State v. Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD (Tenn. Apr. 15, 2004), reh'g denied, (May 18, 2005), holding that the Tennessee Sentencing Reform Act of 1989 is not violative of the Sixth Amendment right to a jury trial. Accordingly, the summary dismissal is affirmed.

The jury returned a verdict in this car wreck lawsuit for Carl and Vicki Roberson ("Plaintiffs") in the amount of $900,000. However, the jury assessed 38% of the fault to Carl Roberson, thereby reducing the total verdict to $558,000 under comparative fault principles. On appeal, Plaintiffs claim the Trial Court erred when it denied their motion for a directed verdict made at the close of proof and in their Rule 50.02 motion. In their motion for directed verdict, Plaintiffs argued there was no material evidence to support defendant Motion Industries' claim that Mr. Roberson was guilty of comparative fault. The Trial Court denied the motion and allowed the jury to decide the comparative fault issue. Thereafter, Plaintiffs filed a motion for new trial which the Trial Court denied after specifically approving the amount of damages awarded by the jury as well as the jury's allocation of fault. Plaintiffs appeal claiming the Trial Court erred when it denied their motion for directed verdict. We affirm.

Plaintiff-corporation sued defendant, a stockholder, officer, and director of a corporation engaged in the design and manufacture of stereo speakers, to recover the amount due on loans made to the corporation allegedly based on negligent and fraudulent misrepresentations of the defendant. The pleadings also seek to pierce the corporate veil and hold the defendant personally liable for the corporation debts. The trial court found no fraud or misrepresentation on the part of the defendant and entered judgment for the defendant. Plaintiff appeals. We affirm.

The Appellant, Tiffany Yvonne Marshall, appeals the revocation of her probation by the Cumberland County Criminal Court. On April 5, 2004, Marshall pled guilty to theft over $1,000 and theft under $500 and received an effective four-year sentence. These sentences were suspended, and Marshall was placed on probation to be supervised by community corrections. On May 25, 2004, a probation violation warrant issued alleging Marshall had committed the offenses of identity theft, possession of a Schedule IV controlled substance, and possession of a Schedule VI controlled substance. Following a revocation hearing, Marshall was found to be in violation of her probation, and her original sentence to the Department of Correction was reinstated. On appeal, Marshall argues: (1) that the trial court violated Blakely v. Washington; (2) that the evidence fails to establish that she violated probation; and (3) that the trial court acted "too harshly" by revoking her probation. After review, we find no error and affirm the judgment of the trial court.

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.

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.

Husband appeals in futuro alimony awarded Wife at the end of a thirty-one (31) year marriage. Because the evidence does not preponderate against the trial court's findings and the trial court acted within its discretion in applying relevant legal principles, we affirm.

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.

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.

This is a termination of parental rights case involving rights of both parents to their three young children. Parental rights of both parents were terminated after the trial court found substantial noncompliance with the permanency plan and persistence of conditions that led to the removal under Tennessee Code Annotated section 36-1-113 (g)(3), those conditions being filthy and unsanitary living conditions in the home. The court also found that termination was in the children's best interests. We reverse this decision and remand the case for further proceedings.

The defendant, Jerry Wayne Patterson, was convicted by jury of attempted first degree murder, a ClassA felony, and sentenced to forty years in the Tennessee Department of Correction as a Range II, multiple offender. On appeal, the defendant presents three issues for review: (1) whether the trial court erred by denying the defendant’s motion to suppress his confession; (2) whether the trial court erred by denying the defendant’s motion for judgment of acquittal; (3) whether the evidence was sufficient to support a guilty verdict for attempt to commit first degree murder. Upon review of the record and applicable law, we affirm the judgment of the trial court.

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.

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.

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.

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.

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.

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.

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
 

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.

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 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.

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 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.