APPELLATE COURT OPINIONS

We granted this appeal to determine 1) whether a trial court's order declining to hold an alleged contemnor in civil contempt may be appealed; 2) whether compensatory damages for civil contempt are available pursuant to Tennessee Code Annotated section 29-9-105 (1980 & 2000) from a contemnor who commits an act forbidden by a trial court's order; and, if so, 3) whether those damages may be recovered if the violation is not ongoing at the time of the hearing. We answer these questions in the affirmative. Accordingly, we affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

The defendant appeals his convictions for attempted second-degree murder and aggravated robbery.  Specifically, he avers that, (1) the evidence was insufficient to support the verdicts; (2) the State’s failure to disclose the statement of an unindicted co-conspirator constitutes a Brady violation and entitles him to a new trial; (3) the sentence was issued in error, in light of Blakely v. Washington; and (4) the cumulative effect of all errors merits a new trial. Following our review, we affirm the convictions and the sentences imposed.

Dorian Jones ("the defendant") was cited to the Municipal Court of Johnson City for a violation of the Animal Control Ordinance ("the Ordinance") of the City of Johnson City ("the City"). The City contends that the defendant failed to have his dog "under control." Following a finding of guilt and the imposition of a $50 fine and costs, the defendant appealed to the trial court. Following a bench trial, the trial court entered its judgment, in which it held that the defendant violated the Ordinance. The trial court dismissed the defendant's appeal and decreed that "the fine of Fifty Dollars ($50.00) . . . be reinstated and is hereby upheld and affirmed." The defendant appeals to us, contending that he was entitled to a jury trial. He also argues, in legal effect, that the evidence preponderates against the trial court's judgment. We affirm.

The Appellant, James C. Breer, appeals the Henry County Circuit Court’s dismissal of his petition for post-conviction relief. On appeal, Breer argues that trial counsel was ineffective for (1) failing to investigate and prepare for trial, and (2) failing to advise him of his right to testify at trial in violation of Momon v. State, 18 S.W.3d 152 (Tenn. 1999). After review, we conclude that issue (1) is without merit. However, with regard to issue (2), we conclude that the record does not support the trial court’s finding that Breer personally waived his right to testify as required by Momon.  Moreover, because the procedural guidelines adopted in Momon for determining whether the error was harmless were not followed, we find it necessary to remand for resolution of this issue.

A Dyer County jury convicted the defendant, Syrus Maurice Coleman, of possession of .5 grams or more of cocaine with the intent to sell or deliver, a Class B felony. The trial court sentenced the defendant as a multiple offender to fourteen years in the Department of Correction. On appeal, the defendant argues that the evidence is insufficient to support his conviction. Upon our review of the evidence, we affirm the judgment of the trial court.

The appellant, Otis Miller, III, pled guilty to four (4) counts of aggravated sexual battery. As a result of the guilty plea, the trial court sentenced the appellant to ten (10) years on each conviction and ordered the first two counts to be served concurrently and the last two counts to be served concurrently. The trial court ordered that the first two counts be served consecutively to the remaining two counts, for an effective sentence of twenty (20) years. On appeal, the appellant challenges the trial court's application of certain enhancement factors in violation of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and the trial court's decision to order consecutive sentences. Because our supreme court recently determined that Blakely has no application in Tennessee, we have reviewed the appellant's sentence de novo. Despite the trial court's improper application of several enhancement factors, we affirm the appellant's sentence because we determine that the existence of enhancement factor (16) justifies enhancement of the sentence from eight (8) to ten (10) years. We also affirm the trial court's decision to order consecutive sentences.

Following a jury trial, the defendant was found guilty of two counts of sale of a Schedule III controlled substance (Lortab), a Class D felony, and sentenced as a Range I, standard offender, to concurrent four-year sentences. He appeals to this Court contending that: (1) the evidence presented was insufficient to show that the defendant acted knowingly; (2) the evidence presented was insufficient to show that the transaction constituted a sale; (3) the trial court erred in finding that the dispensing of prescription drugs creates a high risk of harm to human life; and (4) the trial court erred in denying alternative sentencing. Following our review, we affirm the defendant's convictions and sentences.

Plaintiff, a switchman/brakeman for Illinois Central Railroad Company, filed a claim for damages arising from injuries allegedly caused by the railroad’s failure to maintain a track switch. The jury allocated 100% fault to the railroad and awarded Plaintiff $500,000 in damages. The trial court denied the railroad’s motion for a directed verdict, remittitur, or new trial. We affirm.

The appellant, Joseph D. Taylor, was convicted of attempted rape, attempted sexual battery, and aggravated kidnapping. After a sentencing hearing, the appellant was sentenced as a career offender to fifteen (15) years for attempted rape, eleven (11) months and twenty-nine (29) days for attempted sexual battery, and twelve (12) years as a violent offender for aggravated kidnapping. On direct appeal, this Court affirmed the conviction for attempted rape and reversed the other two convictions. See State v. Taylor, 63 S.W.3d 400 (Tenn. Crim. App. 2001). The appellant filed a petition for post-conviction relief, which was denied by the trial court after a hearing. On appeal, this Court set aside the appellant's sentence for attempted rape because he was improperly sentenced as a career offender. See Joseph D. Taylor v. State, No. M2003-00138-CCA-R3-PC, 2004 WL 350641, at *11 (Tenn. Crim. App., at Nashville, Feb. 20, 2004). On remand, the trial court sentenced the appellant to fifteen (15) years as a Range III offender. A timely notice of appeal was filed. The appellant challenges his sentence, arguing that his sentence violates Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), because the trial court improperly applied enhancement factors that were not admitted by the appellant or determined by a jury. After a review of the record, we affirm the judgment of the trial court pursuant to Court of Criminal Appeals Rule 20.

In this divorce case, Mother was declared to be the primary residential parent and Father's overnight co-parenting time was required to be exercised at his parents' home with them present. This restriction was prompted by presentation of evidence that Father haded computer internet sites exhibiting material of a sexual nature and had placed a personal advertisement on an internet site in an apparent effort to attract sexual partners. Father appeals. Absent proof that Father's actions presented any risk of harm to his children, we modify the judgment of the trial court and the parenting plan to delete the requirement that Father's overnight visitation be supervised by his parents at their home. We further modify the parenting plan to the extent that it does not require mutual decision-making.

William and Shirley Tassell's ("Plaintiffs") purchase of a house in 1998 was financed through U.S. Bank, Inc. (the "Bank"). After Plaintiffs fell behind in their payments, the Bank filed a detainer warrant and began the foreclosure process. Plaintiffs claim they made a payment bringing their mortgage current and they made this payment one day before their house was to be sold at foreclosure. Plaintiffs claim the Bank, nevertheless, proceeded with the foreclosure sale thereby forcing them to file this lawsuit seeking to have the foreclosure set aside. The Trial Court denied Plaintiffs' request for a temporary restraining order and refused to interfere with the foreclosure proceedings, noting that no valid appeal had been taken in the detainer action. Plaintiffs appeal. We dismiss this appeal because there is no final appealable judgment as required by Tenn. R. App. P. 3(a).

The defendant, Henry Ford Williams, Jr., entered a plea of guilt to the unlawful possession of a firearm. Tried by a jury on a charge of possession of .57 grams of cocaine with intent to sell within one thousand feet of a school and simple possession of cocaine, the defendant was convicted on each count. The trial court merged the two illegal drug convictions. Concurrent sentences of three years for the firearm conviction and thirty-two years, six months, for the cocaine conviction were imposed upon the defendant. The single issue presented for review is whether the evidence was sufficient. The judgments are affirmed.

The Defendant, Bud Cash, Jr., was indicted on sixteen counts of possession of a handgun by a convicted felon, and three counts of possession of an altered serial number weapon. After the statute of limitations had expired, the State filed two subsequent superceding indictments. The trial court dismissed all three indictments, holding that the original indictment was insufficient to provide the Defendant notice of the charges and insufficient to protect the Defendant from double jeopardy, and that the subsequent indictments were untimely filed. The State appeals, contending that the trial court erred when it dismissed the indictments. We agree with the State, and, accordingly, we reverse the judgments of the trial court.

Petitions for rehearing have been filed by Edwin Gomez, Jonathan Londono, the Attorney General and Reporter¹, and amicus curiae, Tennessee Association of Criminal Defense Lawyers. The petitioners primarily argue that the majority opinion rests upon a misunderstanding and misapplication of the United States Supreme Court’s decisions in Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005).

The arguments advanced in the petitions to rehear were considered and rejected by a majority of this Court in its original opinion. We remain convinced that Blakely must be read in light of Booker. To do otherwise would not serve to “preserve Sixth Amendment substance.” Booker, 125 S. Ct. at 752. In Booker, Justice Stevens explained:

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court’s answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

Id. at 750 (citations omitted). The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment byapplying in Booker a remedywhich created a discretionarysentencing scheme. Id. at 764. We are not persuaded that the differences between the Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find factsrelevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining whether pursuant to Tenn. Code Ann. §§ 50-6-241(a)(2) and 50-6-207(3)(F), the appellant was entitled to reconsideration benefits stemming from a 1997 injury when she was terminated following a subsequent injury to the body as a whole, the trial court found the claim to be prohibited by statute. The appellant contends the trial court erred in its statutory interpretation. We find no error and affirm the judgment of the trial court.

The trial court granted Defendant’s motion to dismiss for failure to state a claim upon which relief can be granted. Having reviewed the complaint, we disagree and reverse.

The petitioner, Matthew Melton Jackson, appeals as of right the dismissal of his petition for post-conviction relief by the Robertson County Circuit Court. He seeks relief from his convictions for two counts of aggravated rape, one count of aggravated kidnapping, one count of aggravated robbery, and effective sentence of twenty-five years. The petitioner contends that he received the ineffective assistance of counsel and that his guilty pleas were not voluntary or knowing. We affirm the judgment of the trial court.

The defendant, Douglas F. Jordan, Jr., was convicted of second degree murder and ordered to serve twenty-three years in the Department of Correction. In this appeal of right, the defendant contends that the evidence was insufficient, that the trial court committed certain evidentiary errors, that the trial court erred by denying his motion for continuance, and that the sentence was excessive. The judgment of the trial court is affirmed.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the appellee was entitled to proceed with his lawsuit for reconsideration benefits stemming from a 1998 injury when he was terminated following a subsequent injury to the body as a whole, and awarded benefits. The trial court further found no liability on the part of the Tennessee Second Injury Fund. The appellant contends that the employee’s claim for enlargement is prohibited by Tenn. Code Ann. §§ 50-6-241(a)(2) and 50-6-207(3)(F), and that the trial court erred in its statutory interpretation. For the reasons set forth below, we reverse the holding of the trial court.

The petitioner, William Brown, appeals the trial court's denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel. After reviewing the record, we affirm the dismissal of the petition for post-conviction relief.

Plaintiffs in this action, Roger Ralph and Kem Ralph, were sued in federal court for patent infringement and breach of contract. Their farmer’s liability insurance carrier, Grange Mutual, denied coverage and refused to defend. Plaintiffs filed a complaint in the Lauderdale County Chancery Court against Grange Mutual seeking a declaratory judgment, a judgment for breach of contract, and specific performance. They also filed a complaint for professional negligence and breach of contract against their insurance agent, Pipkin Insurance Agency/Mr. Robert Pipkin. The trial court granted Grange Mutual’s motion to dismiss and awarded the Pipkin Insurance Agency/Mr. Pipkin summary judgment. We affirm.

Debra L. Ogelsby ("Mother") and Mark D. Bridges ("Father") are the natural parents of Holly Bridges ("the child"). By an order entered in 1986, Mother was awarded custody of the child and Father was charged with a duty of support but with no amount being set. In 1998, the child started living with Father. At that time, Father, motivated by the fact the child was now living with him, filed a petition to terminate his support obligation. His petition was granted. In 1999, the child left Father and again took up residence with Mother. The child was emancipated by marriage in 2000. In 2002, the State of Tennessee ("the State"), on behalf of Mother, brought this action seeking retroactive child support for the period from 1999 through 2000. Father argues that the trial court was prohibited from awarding retroactive child support prior to June 11, 2002, the date upon which the State filed its petition. The trial court held that Mother was entitled to retroactive child support since there was no active order for child support in place at the time the petition was filed. Father appeals. We affirm.

Earl A. Crow, III, brought this action against his landlords, Daniel R. LeDoux and wife, Katherine Marie LeDoux (collectively "the defendants"), for injuries sustained by him in a fall caused by an allegedly defective heating grill in his apartment. The defendants filed a motion for summary judgment, arguing, inter alia, that the plaintiff's knowledge of the condition of the grill was at least co-extensive with that of the defendants, and that, as a consequence of this fact, no liability attached. The trial court agreed and granted the defendants' motion. The plaintiff appeals. We vacate the trial court's grant of summary judgment and remand for further proceedings.

This is an action on a promissory note against two stockholders of a now insolvent closely-held corporation, who it is alleged, guaranteed payment of a note owed by the corporation. The alleged guarantee arises out of a stock purchase agreement. Liability hinges on the construction of the stock purchase agreement and whether parol evidence is admissible. The trial court found the agreement unambiguous and barred parol evidence. The defendants insist the agreement is ambiguous and that evidence of negotiations leading up to the execution of the agreement and the intent of the parties should have been admitted. We find the agreement is ambiguous and therefore parol evidence should have been considered. We also find that the defendants are entitled to a new trial on the merits because they have been deprived of the substantial right to introduce evidence of contract negotiations and the intent of the parties at the time the Agreement was executed. We therefore vacate the judgment and remand this matter for further proceedings consistent with this opinion.

The appellant, Steve Brian Hannah, pled guilty in the Blount County Circuit Court to one count of theft of property over $10,000, three counts of theft of property over $1,000, and one count of possession of marijuana with intent to resell. Pursuant to the plea agreement, the appellant received an effective five-year sentence with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the appellant to serve one year in confinement and the remainder of his sentence on community corrections. On appeal, the appellant claims the trial court erred by refusing to grant his request for full probation. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court but remand for entry of corrected judgments as to the thefts.