APPELLATE COURT OPINIONS

The divorced mother was permitted by the Trial Court to relocate with her two children to Cincinnati, Ohio from Hamilton County, Tennessee. The father has appealed. We affirm.

The Appellant, Jason D. Norris, appeals the sentencing decision of the Davidson County Criminal Court. Pursuant to a plea agreement, Norris pled guilty to five counts of aggravated robbery, stemming from two separate indictments, with the manner and service of the sentences to be determined by the trial court. Following a sentencing hearing, Norris was sentenced to eight years for each conviction, with two of the sentences to be served consecutively, for an effective sentence of sixteen years. On appeal, he argues that his sentences are excessive and that the trial court erred by ordering total confinement as opposed to sentences of community corrections. Additionally, Norris argues that the imposition of consecutive sentences violates Blakely v. Washington. After review, we affirm.

The defendant, Christopher David Parsley, appeals his sentence of three years for aggravated burglary and one year for sexual battery, to be served concurrently. A split confinement sentence was imposed of seven months to serve followed by three years of supervised probation. The defendant contends that the trial court erred in failing to grant judicial diversion or, alternatively, full probation. After review, we affirm the sentence of the trial court.

This litigation arose out of an automobile accident. The parties settled the plaintiffs' claims for $30,000; in due course, the defendants' insurance carrier paid the plaintiffs the full amount of the settlement. Sometime after the payment had been made, the defendants moved the trial court to hold the plaintiffs and their attorney in contempt because of their failure to satisfy the lien of a third party and because of their failure to pay a $500 attorney's fee ordered by the trial court. The trial court denied the motion. The defendants appeal the trial court's action, but only with respect to the court's failure to hold the plaintiffs' attorney in contempt. We affirm and hold that the defendants' appeal is frivolous in nature.

Defendant, Jackie J. Porter, pled guilty to one count of possession of 0.5 grams or more of cocaine with intent to sell, manufacture or distribute, a Class B felony, and one count of simple possession of marijuana, a Class A misdemeanor. The length and manner of service of his sentences were left to the decision of the trial court. Following a sentencing hearing, the trial court sentenced Defendant as a Range I, standard offender, to eight years, six months for his Class B felony conviction, and eleven months, twenty-nine days for his Class A misdemeanor conviction. The trial court ordered Defendant to serve his sentences concurrently, for an effective sentence of eight years, six months.  The trial court denied Defendant’s request that he be placed on community corrections. Defendant does not challenge the validity of his guilty pleas or his sentence for his misdemeanor conviction.  In his appeal, Defendant argues that the trial court erred in determining the length of his felony sentence and in denying Defendant’s request for alternative sentencing. Upon review of the record, we conclude that the trial court erred in failing to state on the record its reasons for denying a sentence of community corrections. Accordingly, we affirm Defendant’s convictions and the length of the sentence, but reverse the judgment as to the manner of service of the sentence, and remand for a new sentencing hearing regarding the manner of service of the sentence.

The jury returned a verdict for the defendant doctors and medical clinic in this medical malpractice action. The plaintiff argues on appeal that the trial court committed reversible error at several stages of the trial, including jury selection, witness’ testimony and jury instructions. Further, the plaintiff argues that there was insufficient evidence to support the jury’s verdict. We affirm the trial court.

This is a medical malpractice case arising out of the postoperative treatment and care of Emit Greg Norris ("the child"), the minor child of Connie J. Norris ("the plaintiff"). At the conclusion of the plaintiff's case-in-chief, the remaining defendants moved for a directed verdict. The trial court determined that the plaintiff had failed to present a prima facie case of acts or omissions of medical negligence that proximately caused the condition that resulted in the child's death. Accordingly, the trial court granted the defendants' motion and dismissed the plaintiff's case. The plaintiff appeals. We affirm.

This is a suit to quiet title to real property. The issue presented is whether the trial court correctly decreed that any legal or equitable interest of Paul Richard Johnson in the real property purchased by Envision Properties, LLC was extinguished by operation of the doctrine of adverse possession. Based on the stipulated proof, we hold that there was not clear and positive proof of adverse possession sufficient to constitute an ouster of a co-tenant. Therefore, Paul Richard Johnson has an undivided one-fifth interest in the property. The judgment of the trial court is reversed.

In this third appeal from a Williamson County divorce, the wife challenges the trial court's valuation and distribution of the marital estate and award of alimony upon remand. Both parties seek an award of attorney's fees. The husband seeks damages for frivolous appeal. We affirm the trial court's valuation and distribution and award of alimony and deny the husband's frivolous appeal damages request.

This appeal involves the division of marital property following the dissolution of a nine-year marriage. The wife filed a complaint for divorce in the Chancery Court for Dickson County. Following a bench trial, the court granted the wife a divorce on the ground of inappropriate marital conduct, divided the parties' marital estate, and denied the wife's requests for spousal support and attorney's fees. The wife takes issue on this appeal with the manner in which the trial court classified, valued, and divided the parties' property. We have determined that the trial court's decision regarding the parties' marital estate must be modified with regard to the division of the increase in the value of the marital home and the increase in the value of the husband's retirement. Accordingly, we modify the judgment and affirm.

Matthew Ballard filed this action pursuant to the federal Jones Act, seeking damages for the injuries he sustained when he fell on the deck of a barge owned and operated by his employer, Serodino, Inc. ("the defendant"). The jury returned a verdict assessing 75% of the fault to the plaintiff and 25% of the fault to the defendant. As a consequence of the jury's allocation of fault, the plaintiff was awarded $37,500, i.e., 25% of the total damages found by the jury. The plaintiff appeals, arguing that there is no material evidence to support a finding that he was 75% at fault. He also argues that the trial court erred in failing to grant his motion for a directed verdict. We affirm.

In this post-divorce proceeding, Carol Lyn Roberts (“Mother”) seeks to relocate to North Carolina with the parties’ minor child, Victoria Noel Roberts (DOB: June 25, 1997). William Frederick Roberts (“Father”) filed a petition in opposition to the move. Following a bench trial, the court determined, under Tenn. Code Ann. § 36-6-108, that the parties were spending “substantially equal intervals of time” with their child and that it was in the child’s best interest to remain in Tennessee.  Accordingly, the court denied Mother’s request to relocate. Mother appeals. For the reasons stated herein, we vacate the trial court’s decision and grant Mother’s request to relocate with the child.

The Appellant, Devon Crawford, appeals the judgment of the Shelby County Criminal Court denying post-conviction relief. On appeal, Crawford argues that he was denied his Sixth Amendment right to the effective assistance of counsel. After review, the judgment of the post-conviction court is affirmed.

In this appeal, we are called upon to evaluate the propriety of the trial court’s decision to award a creditor a deficiency judgment against the debtor following the sale of the collateral after the debtor defaulted on the loan. The debtor filed an appeal to this Court arguing that the creditor failed to provide him with reasonable notice of the sale of the collateral and that the creditor did not conduct the sale in a commercially reasonable manner. We hold that the creditor did not provide the debtor with reasonable notice. Accordingly, we reverse the decision of the trial court and remand this case to the trial court for further proceedings.

Purchaser of a residence filed a suit against sellers and real estate agent for rescission of the contract and damages, claiming that Defendants engaged in misrepresentation by suppressing or concealing the existence of a TVA easement along the backside of the property. The Davidson County Chancery Court granted Defendants summary judgment and Plaintiff appealed. The judgment of the trial court is affirmed in all respects.

We granted appeal in this products liability action to determine whether the trial court erred in excluding as unreliable the testimony of the plaintiffs’ two expert witnesses, a mechanical engineer and a biomechanical engineer, and thereafter granting a directed verdict in favor of the defendant. We hold that the trial court erred in applying the nonexclusive list of reliability factors set out in McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). These factors are not mandated in every case in which expert evidence is offered and should not be applied unless the factor or factors provide a reasonable measure of the expert’s methodology. We further conclude that the trial court erred in granting a directed verdict in favor of the defendant. Accordingly, we reverse the judgment of the Court of Appeals, which affirmed the trial court’s judgment. We remand the case to the trial court for further proceedings in accordance with this opinion.

Petitioner, James Lester Qualls, appealed the decision of the Civil Service Commission, which had overturned the Administrative Law Judge’s decision and reinstated the Department of Corrections’ disciplinary actions against Mr. Qualls. Upon determining that the Civil Service Commission had failed to make written findings for review, the chancery court vacated the order and remanded the matter to the Civil Service Commission for findings. Mr. Qualls filed a motion to alter or amend the judgment to include an award of attorney’s fees. The chancery court granted the motion and awarded attorney’s fees pursuant to 42 U.S.C. § 1988. The Civil Service Commission and Department of Corrections filed a motion to alter or amend in chancery court and now appeal to this Court, asserting this action does not fit within 42 U.S.C. § 1988 and, alternatively, the attorney’s fees award is unreasonable. We dismiss for lack of subject matter jurisdiction.

Cumberland County Criminal Court jury convicted the appellant, Dane Lee Duckett, of attempting to manufacture methamphetamine, simple possession of marijuana, possession of drug paraphernalia, and driving on a suspended license, and the trial court sentenced him to an effective sentence of six years in confinement. On appeal, the appellant claims that the evidence is insufficient to support the convictions and that his sentence is excessive. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

The petitioner, Eli J. Landry, Jr., pled guilty in the Davidson County Criminal Court to two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him as a Range II, multiple offender to concurrent sentences of thirteen years. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of trial counsel and that his guilty pleas were not knowingly and intelligently entered. The post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

The defendant appeals his conviction for premeditated first degree murder and presents nine issues for review: (1) Sufficiency of the evidence; (2) Failure to dismiss the indictment due to prosecutorial delay; (3) Failure to suppress the defendant's statements; (4) Failure to suppress a crime scene photograph; (5) Admission of hearsay under the state of mind exception; (6) Admission of hearsay under the co-conspirator exception; (7) Admission of conduct and activities by Chuck Dixon with Cashbox magazine; (8) Admission of a tape recording and transcript of the defendant's conversations; and (9) Error in instructing the jury on aiding and abetting. After careful review, we find no reversible error and affirm the defendant's conviction.

The Defendant, James Yates, filed a pro se pleading seeking to have a conviction and sentence set aside as unconstitutional. The trial court treated the pleading as seeking a writ of habeas corpus and summarily denied the Defendant’s claim for relief. The Defendant now appeals as of right. We affirm the trial court’s judgment.

This is a property dispute between next-door neighbors over a gate across a driveway easement. The two neighbors shared a common driveway from the public road in front of both properties. After a clash between the two neighbors' dogs, one neighbor erected a fence on the boundary line with a gate across the other neighbor's portion of the driveway. This lawsuit followed. The trial court enjoined the defendant neighbor from placing the fence and gate over a portion of an easement that was the only existing driveway to the plaintiff's residence on the adjoining property. The trial court found that the gate was not necessary for the defendants' use and enjoyment of their property, and held that the defendants' erection of the gate constituted an unreasonable interference with the plaintiffs' right to use the easement. The defendants appealed. We affirm, finding that, although the gate may not have been an unreasonable interference with the plaintiffs' right to use the easement, the evidence does not preponderate against the trial court's finding that it was not necessary for the defendants' use and enjoyment of the property.

Petitioner, Charles Goode, appeals the trial court’s dismissal of his petition for post-conviction relief.  In this appeal, Petitioner argues that his counsel’s representation at trial was deficient because he failed to adequately investigate Petitioner’s case and failed to effectively cross-examine the victim.  After a thorough review of the record, we affirm the judgment of the trial court.

The petitioner, Jesse Teasley, appeals from the trial court's order denying 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 petitioner has failed 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.

Respectfully, I find I cannot fully concur in the opinion because, based upon the absence of a contemporaneous objection, it treats as waived the issue of the trial court’s “reading the aggravated kidnapping as a lesser-included offense out of order during the charge to the jury.”   The instructional problem alleged is one of instructional error, not instructional omission. In the case of the former, no contemporaneous objection is required, unlike when an instruction is omitted. See, e.g., State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, slip op. at 8-9 (Tenn. Crim. App., Knoxville, Dec. 3, 1999).