APPELLATE COURT OPINIONS

The petitioner, Allen Oliver, pled guilty in the Shelby County Criminal Court to numerous offenses and received a total effective sentence of twenty-three years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his guilty pleas were not knowingly and voluntarily entered and that his attorneys were ineffective. The post-conviction court denied the petition, and the petitioner appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant, Sarah Leigh Pannell, appeals from the Marshall County Circuit Court's denial of alternative sentencing. The record supports the court's order, and we affirm.

I concur completely in the majority’s conclusion that “the facts preponderate against the Trial Court’s holding that only $2,000 in fees was a reasonable amount for work performed at the trial court level.” I also agree with the majority’s decision that $6,500 is a reasonable fee for counsel’s work at the trial court level.

This appeal involves a motorcycle rider who was seriously injured while crossing two heavy steel plates placed over the surface of a portion of a state highway that was under construction. The rider filed a claim with the Tennessee Claims Commission asserting that the front tire of his motorcycle became lodged in a gap between the two steel plates and that this gap was the dangerous condition that caused his injuries. Following a hearing, a claims commissioner dismissed the claim after concluding (1) that the rider had failed to prove that the State, rather than the highway contractor, was responsible for maintaining the steel plates, (2) that the rider had failed to prove that the State had notice of the gap between the plates, and (3) that the rider’s negligence exceeded that of the State. The motorcycle rider has appealed. We have determined that the claims commissioner erred by concluding that the State was not on notice of the dangerous condition on the highway and that the motorcycle rider’s negligence exceeded the State’s negligence.

This appeal centers around the Trial Court’s award of attorney fees to Plaintiffs in this Tennessee Consumer Protection Act case. Following remand after the first appeal, the Trial Court awarded attorney fees of $2,000 for work performed in preparation for and the jury trial of this case, and an additional $4,500 in attorney fees incurred on the first appeal. Plaintiffs appeal claiming the Trial Court’s award of $2,000 in fees incurred at the trial court level was unreasonably low. Defendant appeals claiming the Trial Court erred in awarding any fees incurred on the appeal. We reverse the award of fees incurred on the appeal, and modify the Trial Court’s judgment to award $6,500 in fees for work performed at the Trial Court level.

The petitioner, Jubal Carson, appeals theLauderdale County Circuit Court’s dismissal of his petition for habeas corpus relief. Because the petitioner failed to timely file a notice of appeal and the interests of justice do not require the waiving of a timely notice, we dismiss the appeal.

The petitioner, Marcus E. Thompson, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding he received effective assistance of trial and appellate counsel. Following our review, we affirm the denial of the petition.

Kenny Vaughn and Barbara Vaughn ("Plaintiffs" or "Mr. Vaughn" and "Mrs. Vaughn" as appropriate) sued Notie L. Cunningham and John Doe concerning an automobile accident that occurred in Hamilton County. The case was tried before a jury and the Trial Court entered judgment on the jury's verdict. The jury found John Doe 100% at fault for the accident, but awarded Plaintiffs no damages. Plaintiffs appeal to this Court claiming that the jury verdict is contrary to the evidence because the amount of damages is not within the range of reasonableness, and that the Trial Court erred by not granting a new trial and by awarding court costs against Plaintiffs. We affirm as modified.

The Defendant pled guilty to and was convicted of misdemeanor casual exchange of marijuana not in excess of one-half ounce, Class E felony possession with intent for resale of not less than one-half ounce nor more than ten pounds of marijuana, and possession of a handgun as a felon, also a Class E felony. The Defendant was sentenced to eleven months and twenty-nine days for his misdemeanor conviction, and three years as a Range II, multiple offender for each felony conviction. The trial court ordered the two felony conviction sentences to be served consecutively, for an effective six year term of incarceration. On appeal, the Defendant challenges his sentence, claiming the court erred by: 1) imposing consecutive sentences, and 2) denying alternative sentencing. We affirm the judgments of the trial court.

This case involves issues arising out of the parties’ divorce. The chancery court designated and divided the parties’ assets and placed an equitable lien on the separate property of the husband. The chancery court did not award alimony or attorney’s fees and discretionary costs to the wife. We affirm in part, vacate in part, reverse in part, and remand for further proceedings. Further, we decline to award attorney’s fees and costs on appeal

Petitioner appeals the dismissal of his petition for post-conviction relief arguing that his trial counsel rendered ineffective assistance of counsel during the preparation of his case. Specifically, Petitioner contends that trial counsel’s failure to interview and call Andre Jackson as a witness at trial was deficient conduct. After a thorough review of the record, we conclude that Petitioner has failed to show that he was prejudiced by any deficiencies in his trial counsel’s performance, and we thus affirm the judgment of the post-conviction court.

Petitioner, Kenneth B. White, filed a pro se petition for post-conviction relief alleging that his trial counsel rendered ineffective assistance of counsel by failing to pursue an appeal following Petitioner’s conviction of vehicular homicide. The post-conviction court dismissed the petition without an evidentiary hearing because it was untimely filed. After a thorough review, we affirm the judgment of the post-conviction court.

The petitioner, Kenny Carson Cockrell, Jr., pled guilty in the Madison County Circuit Court to six  counts of aggravated robbery and one count of attempted aggravated robbery, and he received a total effective sentence of twenty-five years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. After a hearing, the post-conviction court denied the petition, and the petitioner now appeals. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

In this appeal, we are called upon to evaluate the trial court’s grant of summary judgment to the defendant in a premises liability suit. After reviewing the record, we hold that the plaintiff failed to establish that the defendant owed her a duty of care. Specifically, the plaintiff failed to offer any proof tending to show that the ramp on which she slipped and fell constituted a defective and/or dangerous condition. Accordingly, we affirm the trial court’s grant of summary judgment to the defendant.

The petitioner, Terry Lynn Roberts, was convicted of rape of a child, aggravated sexual battery, and rape and sentenced, respectively, to terms of twenty-five years, eleven years, and twelve years, with the sentences to be served consecutively. The convictions and sentences were affirmed on direct appeal, with the petitioner then filing a petition for post-conviction relief, relying on the holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and asserting that it should be applied retroactively and, as a result, the court erred in enhancing his sentences. The post-conviction court dismissed the petition, and we concur in that dismissal.

The defendant, Troy Wayne Stepp, was convicted of delivery of a Schedule II controlled substance, methamphetamine, a Class C felony, and sentenced as a multiple offender to eight years in the Department of Correction. On appeal, he argues: (1) the trial court erred in allowing the introduction of a transcript of a taped-recorded conversation; and (2) the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

The defendant, Bernard Miguel Wallace, was convicted by a Hardin County jury of the sale of under .5 grams of a Schedule II controlled substance, cocaine, a Class C felony. He was sentenced as a Range II, multiple offender to nine years in the Department of Correction and fined $2000. On appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) his sentence is illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Following our review, we affirm the judgment of the trial court.

The petitioner, Leonard V. Catalano, pled guilty to three counts of aggravated sexual battery. As a result, he was sentenced to thirty-two years incarceration. His sentence was affirmed by this Court on direct appeal. See State v. Leonard V. Catalano, No. M2001-03039-CCA-R3-CD, 2003 WL 21877933 (Tenn. Crim. App. at Nashville, July 9, 2003), perm. app. denied, (Tenn. Nov. 24, 2003). The petitioner subsequently sought post-conviction relief, alleging that his guilty plea was not knowing and voluntary due to ineffective assistance of counsel. Following a hearing, the post-conviction court denied the petition. The petitioner appealed. For the following reasons, we affirm the judgment of the post-conviction court.

The divorced father was found to be in willful criminal contempt of a previous court order by the trial court and sentenced to 10 days in the Williamson County jail for not paying his child support in June 2006, 10 days for not paying his child support in November 2006, 10 days for not paying his child support in December 2006, and 10 days for not paying his share of the medical bills of his minor children. The father appealed. We affirm.

This is a suit for collection of a credit card debt. AmSouth Bank ("AmSouth") filed a complaint on a sworn account seeking a judgment against Mr. and Mrs. Soltis for the unpaid balance on three credit card accounts. Mr. and Mrs. Soltis answered and denied AmSouth was entitled to any relief. AmSouth filed a motion for summary judgment. Mr. and Mrs. Soltis responded by filing three documents entitled "Verified Application to Confirm and Enforce Arbitration Award" and three "Award" documents indicating that AmSouth Bank owed Mr. and Mrs. Soltis money. The parties had not agreed to arbitration and had not participated in arbitration. The trial court granted AmSouth's motion for summary judgment and Mr. and Mrs. Soltis appealed. The issue presented on appeal is whether the trial court erred in granting AmSouth's motion for summary judgment and in entering judgment against Mr. and Mrs. Soltis. After careful review of the record and applicable authorities, we affirm the judgment of the trial court.

The defendant, Sleda Richards, pled guilty to two counts of reckless aggravated assault, a Class D felony, one count of running a stop sign, a Class C misdemeanor, one count of driving under the influence, a Class A misdemeanor, one count of driving on a revoked license, a Class B misdemeanor, and one count of failure to appear, a Class E felony. The Sullivan County Criminal Court sentenced her to a total effective sentence of six years as a Range I, standard offender to be served in the Department of Correction. The defendant appeals, contending that the trial court erred in denying her probation or alternative sentencing. We affirm the judgments of the trial court.

I concur in the results and most of the reasoning in the majority opinion. I disagree, though, with its view of the trial court’s instructing the jury regarding an excited utterance. The hearsay rule of exclusion is mainly based upon concerns for the reliability of the asserted fact by an out-of-court declarant. See State v. Henry, 33 S.W.3d 797, 803 (Tenn. 2000). An excited utterance is an exception to the rule of exclusion because we believe it occurs under circumstances rendering it sufficiently reliable to be admitted into evidence. See State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn. 1997). However, a trial court should not explain this to a jury because it is truly a comment relevant to the reliability of the evidence.

This is an action to recover on a surety bond. The plaintiff automobile wholesaler sold vehicles to the third-party defendant automobile retailer. The retailer gave thewholesaler the certificates of title for the vehicles as security, pending the retailer’s payment in full for the vehicles. Subsequently, the retailer sold the vehicles to third parties, but did not pay the wholesaler. The wholesaler, therefore, retained the certificates of title. Consequently, the retailer was unable to transfer the certificates of title to the third-party purchasers when they bought the vehicles. Later, in a separate lawsuit, the wholesaler obtained a judgment against the retailer for breach of contract. The wholesaler then filed the instant lawsuit against the defendant surety company on the retailer’s automobile dealership surety bond, claiming that it was damaged by the retailer’s failure to transfer the certificates of title to the purchasers of the vehicles. The surety company filed a third-party complaint against the retailer, asserting that the retailer was required to indemnify the surety company for its attorney’s fees expended in defending the underlying lawsuit. The surety company filed a motion for summary judgment. The trial court granted summary judgment in favor of the surety company against both the wholesaler and the retailer. The wholesaler and the retailer now appeal. We affirm.

This is an action to enforce a commercial guaranty. The defendants were both 25% shareholders in the plaintiff corporation. They each signed a guaranty on a $70,000 line of credit issued to the corporation. Subsequently, two other shareholders of the corporation drew down $50,000 from the line of credit without notifying the defendant guarantors or the corporation’s board of directors. Two days later, the guarantors resigned from the corporation. Within weeks, the two other shareholders who drew the money from the line of credit caused the corporation to default on its obligation.  These two shareholders then purchased the corporation’s debt from the bank in the name of the plaintiff corporation and demanded payment from the guarantors under their guaranties. The guarantors refused to make the requested payments. The plaintiff corporation then sued the guarantors pursuant to the guaranties. The guarantors filed an answer asserting the affirmative defenses of fraud and fraud in the inducement of the guaranties. The plaintiff corporation filed a motion for summary judgment, citing the broad “waiver of defenses” provision in the guaranties.  The trial court granted summary judgment to the plaintiff corporation, concluding that the defenses asserted by the guarantors were waived under the general waiver-of-defenses provision. From that order, the guarantors now appeal. We reverse, concluding that the defenses of fraud and fraud in the inducement were not waived in the general waiver-of-defenses provisions in the guaranties at issue.

Plaintiff inmate filed a petition with the Tennessee Department of Corrections for a declaratory ruling that he was entitled to a parole hearing. Upon denial of his petition, Plaintiff inmate filed an action against two Tennessee Board of Probation and Parole employees, seeking judicial review of the denial of his petition. The trial court granted Defendants' motion for summary judgment based upon the expiration of the statute of limitations. Plaintiff inmate appeals and we affirm the decision of the trial court.