APPELLATE COURT OPINIONS

This appeal involves a tenant who was injured when she slipped on the metal threshold of a rented condominium unit. The tenant and her husband filed a negligence action in the Circuit Court for Davidson County against both the owner of the condominium unit and the homeowners’ association. The trial court granted the condominium owner’s and the homeowners’ association’s motions for summary judgment, and the tenant and her husband have appealed. We have determined that the owner of the condominium unit was not responsible for the maintenance and repair of the metal threshold because it was part of the condominium’s common elements. While the homeowners’ association had a duty to maintain the threshold in a reasonably safe condition, we have determined that the association is not liable to the tenant and her husband as a matter of law because they failed to present evidence that the association had actual or constructive notice of the condition that caused the tenant’s fall.
 

The Petitioner, Victor D. McMiller, Sr., appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed to allege a ground for relief which would render the judgment void, we grant the State's motion and affirm the judgment of the lower court.

I agree that under Blakely v. Washington, 542 U.S. _____, 124 S.Ct. 2531 (2004), enhancement factors (3), (10), and (21) of Tennessee Code Annotated section 40-35-114 cannot be applied in sentencing Defendant. However, instead of modifying the sentence, I would remand for a new sentencing hearing. In light of Blakely, I feel that the trial court should be given the opportunity to impose the appropriate punishment upon the only valid enhancement factor in this case: proof of a prior conviction(s) of defendant as an adult.

This appeal arises from a post-divorce case in which the trial court found the Appellant to be in both criminal and civil contempt for her failure to comply with the court's order respecting co-parenting time and division of property. The Appellant contends that the trial court erred in its finding of criminal contempt because she was not provided adequate notice under Tenn. R. Crim. P. 42(b). The Appellant also contends that the trial court erred in its award of attorney's fees to opposing counsel. We reverse the trial court's order to the extent that it decrees the Appellant to be in criminal contempt and we modify the trial court's order which awards attorney's fees to opposing counsel.

The defendant, Franklin Darnell Brown, Jr., was convicted of manufacturing methamphetamine and possession of drug paraphernalia. The trial court ordered concurrent sentences of six years and eleven months, twenty-nine days, respectively. In this appeal of right, the defendant contends that the evidence was insufficient to support his conviction for manufacturing methamphetamine and that the sentence was excessive. The judgments of the trial court are affirmed.

I agree with the analysis and conclusion of the majority on the issue of responsibility for the threshold. I also concur in the result reached in this case because the tenants, the Dentons, unquestionably had knowledge of the defective condition of the threshold that was superior to that of the association. I write separately, however, because I cannot agree with the majority’s analysis of the appropriateness of summary judgment on the notice issue.1

I agree with the majority opinion that application of enhancement factor (14) violates the ruling in Blakely v. Washington, 542 U.S. _____, 124 S.Ct. 2531 (2004). However, I would remand for a new sentencing hearing for the trial court to use the only applicable enhancement factor, the Defendant’s prior convictions. While the trial court did state that the prior convictions “should be considered very strongly as far as enhancement,” the trial court then immediately stated that Defendant had to be on probation at the time of the offense which is the subject of this appeal, and the trial court applied that enhancement factor also.

On November 13, 2002, the defendant, Leonard H. Cutshall, was indicted by the Sullivan County Grand Jury for (1) transportation of untaxed beer in excess of 100 cases and (2) depriving the State of lawful revenue, both Class E felonies. The defendant pled guilty to these charges at a hearing held on April 21, 2003. As part of the plea agreement, the defendant was to be sentenced to two years as a Range II offender for each count and pay a fine of $2,000 for each count. In addition, the defendant was ordered to pay the State $511.27 in lost revenue. At a hearing held on September 15, 2003, the trial court denied the defendant alternative sentencing and probation. The defendant has appealed that decision to this Court. We have found no error on the part of the trial court. Therefore, we affirm the decision of the trial court.

The Monroe County Senior Citizens Center (“the Center”) – a 501(c)(3) non-profit corporation – filed a claim against the Estate of Cora Veal (“the Estate”). The Center alleges that Cora Veal (“Mrs. Veal”) personally promised to pay for repairs to the Center’s roof, but that she failed to completely honor her promise prior to her death at the age of 92 on September 16, 2002. The trial court denied the Center’s claim. The Center appeals, claiming the trial court erred in its interpretation of Tenn. Code Ann. § 24-1-203 (2000), the so-called Tennessee Dead Man’s Statute (“the Statute”). We affirm.

The defendant Terrell Deberry was indicted for possession with intent to deliver .5 grams or more of cocaine. The defendant Damien Nixon was also indicted for possession with intent to deliver .5 grams or more of cocaine and for driving on a revoked license. After granting a motion to suppress the cocaine found in the possession of defendant Deberry, the trial court permitted the state an application for a discretionary appeal under Rule 9 of the Tennessee Rules of Appellate Procedure. Later, the state determined that because the substantive effect of the trial court’s ruling resulted in dismissal of the charges against each defendant, the more appropriate appellate remedy was under Rule 3 of the Tennessee Rules of Appellate Procedure. This court granted the motion to accept the appeal under Rule 3 and waived the timely filing of notice of appeal by the state. The issue presented for review is whether the trial court erred by granting the motion to suppress. Because the evidence was poperly suppressed, the judgment is affirmed

In this expedited appeal, this Court is asked to decide whether the Shelby County Election
Commission exceeded its authority by refusing to place Referendum Ordinance No. 5072 on the
November 2, 2004, ballot based upon the State Election Coordinator’s opinion that the Ordinance
is unconstitutional. We hold that the Shelby County Election Commission exceeded its authority
in refusing to place the measure on the ballot. Accordingly, the judgment of the trial court is
reversed, and the Commission is hereby ordered to include Referendum Ordinance No. 5072 on the November 2, 2004, ballot.

The petitioner, Robert McChristian, appeals from a summary dismissal of his petition for habeas corpus relief. We affirm.

I concur in the majority opinion, but I question its reliance upon the fact that our supreme court denied permission to appeal in Bland v. Dukes to validate Bland’s holding. Our supreme court has advised us not to attach significance to such a denial. See Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993).

The case before us concerns the untimely death of Montrell Mason and the aggravated robbery of Clinton Anderson and Christopher Fears. The defendant stands convicted of Mason's felony murder in the perpetration of robbery, two counts of aggravated robbery, and weapon possession. We affirm the convictions and sentences.

The appellant, Lilly Bell Gifford, pled guilty in the Sumner County Criminal Court to the sale of cocaine, and the trial court sentenced her to six years incarceration in the Tennessee Department of Correction. However, the appellant was permitted to serve the bulk of her sentence on probation. Thereafter, the trial court revoked the appellant's probation and ordered her to serve the balance of her sentence in confinement. On appeal, the appellant challenges the revocation of her probationary sentence. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The petitioner, Demetrius Lancaster, appeals as of right from the order of the Giles County Circuit Court holding that his petition for post-conviction relief was barred by the statute of limitations. The petitioner contends that the trial court erred in dismissing his petition for being filed outside the one-year statute of limitations for filing post-conviction relief. We affirm the trial court.

The Appellant, Marcus Vashawn Nixon, appeals his jury conviction for rape of a child in the Lauderdale County Circuit Court. As grounds, he asserts that the trial court erred in denying his motion to suppress pre-trial photo identification evidence based upon a Rule 16 discovery violation.  After review of the record, we find no reversible error and affirm the decision of the trial court.

The Defendant, Christopher Hatcher, was tried and convicted for first degree felony murder, second degree murder, attempted first degree murder and reckless endangerment for shooting three victims.   The trial court merged the second degree murder conviction with the felony murder conviction and then sentenced the Defendant to life with the possibility of parole for the felony murder conviction, twenty years for the attempted murder conviction, and eleven months and twenty-nine days for the reckless endangerment conviction. The Defendant appeals, contending that: (1) the trial court erred by not granting his motion for new trial because the State failed to give the Defendant exculpatory evidence; (2) the trial court improperly allowed the State to refer to an alleged robbery previously committed by the Defendant; (3) the trial court erred when it allowed a witness to testify about the alleged robbery; (4) the trial court improperly allowed expert fingerprint testimony; (5) the trial court erred when it did not grant a mistrial based upon the State’s biblical references; (6) the trial court erred by refusing to dismiss a sleeping juror; (7) the trial court erred when it allowed hearsay testimony of a witness; and (8) the evidence is insufficient to sustain his conviction. After a thorough review of the record and applicable case law, we conclude that there is no reversible error in the judgments of the trial court. Accordingly, we affirm its judgments.

Defendant, Jeremy Loader, pled guilty on July 12, 2002, pursuant to a negotiated plea agreement, to two counts of theft of property over $1,000, a Class D felony, and two counts of arson, a Class E felony in Case No. 02-002. In Case No. 01-146, Defendant pled guilty to two counts of burglary other than a habitation, a Class D felony. The terms of Defendant's plea agreement set the length and manner of service of Defendant's sentence as follows. In Case No. 02-002, Defendant would serve four years on each of the theft of property convictions, all suspended but nine months, and two years for each of the arson convictions, all suspended but 144 days, with Defendant placed on probation for the remainder of his sentences on each count. For Case No. 01-146, Defendant would serve four years for each arson conviction, all suspended but nine months, with Defendant placed on probation for the remainder of his sentences. The sentences in Case No. 02-002 and Case No. 01-146 would be served concurrently for an effective sentence of four years. In exchange, the State withdrew other charges against Defendant. Defendant spent nine months in jail before entering his guilty pleas because he was unable to make bond. The trial court granted Defendant's request for judicial diversion, and Defendant was placed on judicial diversion for a period of six years. Defendant's judicial diversion in both cases was revoked on April 21, 2003, and the trial court sentenced Defendant to an effective sentence of four years in the Tennessee Department of Correction, with pretrial jail credit of nine months, in accordance with the terms of his plea agreement. Defendant does not appeal the revocation of his judicial diversion but argues that the trial court erred in ordering a sentence of confinement. Defendant contends that the terms of his plea agreement called for a sentence of split confinement, with the period of confinement already served, in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the trial court erred in not conducting a sentencing hearing prior to imposing Defendant's sentence. Following a thorough review, we affirm the judgments of the trial court.

This appeal is from the chancellor’s decision in a property line dispute. In the absence of a transcript or statement of the evidence, we affirm.
 

The petitioner, Keith Dale Thomas, was convicted by a jury in the Madison County Circuit Court of first degree murder and possession of a deadly weapon with intent to employ it in the commission of an offense. He received a total effective sentence of life plus two years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel and his appellate counsel were ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant, Steven Douglas Tutt, appeals the Marshall County Circuit Court's order that retired his motion for expungement. We dismiss the appeal.

This case essentially involves a dispute between the owners of adjoining properties in Grainger County. Specifically, the dispute focuses on (1) the ownership of a private road ("the disputed private road"); (2) the easement rights, if any, of the plaintiff Benjamin S. Pressnell with respect to a right-of-way over the property of the defendants Steve Hixon and wife, Betty Hixon; and (3) damages allegedly sustained by Pressnell and another plaintiff by virtue of the Hixons' interference with Pressnell's right to use the disputed private road and the easement. The trial court, following a bench trial, found the issues in favor of the plaintiffs. The defendants appeal. We affirm.

First Tennessee Bank National Association ("the Bank") sued Bad Toys, Inc. and Larry N. Lunan on a note that allegedly was "fully mature, owing and unpaid." The note had been cross collateralized with two other notes payable to the Bank. The three notes and the attendant guaranty agreements and security agreements were executed either by Bad Toys, Inc., Larry N. Lunan, or Susan H. Lunan ("Defendants" or as appropriate "the Lunans"). In addition to other collateral, shares of stock were pledged as collateral for the notes. Bad Toys, Inc. and Larry N. Lunan answered the complaint and filed a counter-complaint in which Susan H. Lunan joined as a counter-plaintiff. The counter-complaint alleged, in part, that the Bank had breached its fiduciary duty to the Lunans by failing to sell the pledged stock and that the Bank either had been grossly negligent or had intentionally caused harm to Defendants by refusing to sell the stock. The Bank filed a motion to dismiss and for summary judgment. Defendants opposed by filing the Lunans' affidavit claiming that the Bank had agreed to sell the shares of stock as soon as they were pledged, even though the Lunans were forbidden by an agreement with other shareholders from selling the stock themselves, and that the Bank failed to sell the shares of stock as it had agreed to do. The Trial Court held the Lunans' affidavit should be stricken, in part, and granted the Bank            summary judgment. Defendants appeal. We affirm.

This case involves a child custody dispute between the parents of two minor children. Following a bench trial, the trial court granted the parties an absolute divorce and designated the mother as the primary residential parent. In addition, the court below awarded the parties equal parenting time and provided for an alternating visitation schedule in the Permanent Parenting Plan. The mother subsequently filed a motion requesting the trial court to reconsider the custody arrangement, which the trial court denied. The mother filed this appeal contesting the determination of custody by the Circuit Court of Shelby County. For the reasons stated below, we affirm the decision of the circuit court.