APPELLATE COURT OPINIONS

In this divorce case, Kimberly Ruth McDaniel ("Mother") appeals raising numerous issues, including a challenge to the admission of a tape recorded conversation between Mother and one of her children from a previous marriage. Neither party to this telephone conversation knew that it was being recorded. Admission of the tape recorded conversation damaged Mother's credibility because, prior to its admission, Mother expressly denied making numerous comments contained in this recording. In addition, Mother's father, Homer Jerrolds ("Jerrolds") appeals the Trial Court's finding that he was in criminal contempt for threatening the guardian ad litem outside the courtroom after the Trial Court announced its judgment from the bench. Jerrolds claims he did not receive proper notice pursuant to Tenn. R. Crim. P. 42. We affirm the Trial Court's award of a divorce to Father based on Mother's admitted affair. However, we conclude that the tape recorded conversation should not have been admitted and that its admission was not harmless error. We further conclude that Jerrolds did not receive proper notice pursuant to Tenn. R. Crim. P. 42. The judgment of the Trial Court is affirmed in part, vacated in part, and remanded for further proceedings consistent with this Opinion.

The defendant, Timothy Allen Sumner, appeals from the order of the Criminal Court of Sullivan County revoking his probation. On appeal, he claims that the evidence supported neither the trial court's revocation of probation nor the resulting order that he serve his sentence in confinement. Upon our review, we affirm the order of the trial court.

A Shelby County jury convicted the defendant, Andor Williams, of one count of possession with intent to sell marijuana and one count of possession with intent to deliver marijuana. The trial court merged the convictions and sentenced the defendant, as a Range II multiple offender, to serve a four-year sentence in the workhouse. On appeal, the defendant argues that the evidence at trial was insufficient to sustain his conviction and that the trial court erred when sentencing him. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the Shelby County Criminal Court.

The majority opinion correctly sets out the posture of this case, and I will not restate it. However, I write to dissent from the majority’s opinion because I feel that the facts of this case clearly establish that an illegal judgment of conviction was entered against the defendant and, as such, should not now stand to allow him to be convicted of the very crime that the Tennessee trial court failed to warn him of. In this case, the blatant fundamental unfairness is obvious and, in my opinion, clearly rises to the level of a due process violation.

The Petitioner, Phyllis Ann McBride, was convicted by a jury of the first degree murder of her husband and was sentenced to life in prison. She appealed her conviction, and this court affirmed. State v. Phyliss Ann McBride, No. 01C01-9606-CC-00269, Rutherford County (Tenn. Crim. App. Oct. 24, 1997). The Petitioner's subsequent petition for post-conviction relief was denied, and this court affirmed. Phyllis McBride v. State, No. M2000-00034-CCA-R3-CD, Rutherford County (Tenn. Crim. App. Mar. 22, 2001). The Petitioner now appeals pro se the Rutherford County Circuit Court's denial of her petition seeking a writ of error coram nobis, post-conviction relief, and "DNA Pathological and Toxicological Analysis." We affirm the judgment of the trial court.

The pro se Petitioner, Milburn L. Edwards, appeals the summary dismissal of his petition for a writ of habeas corpus attacking his 1991 convictions for twenty-one counts of rape; two counts of first degree burglary; two counts of aggravated burglary; one count of second degree burglary; one count of aggravated rape; one count of assault with intent to commit rape; and one count of robbery. Following his convictions, the Petitioner initially received an effective sentence of life plus 415 years, which was later modified to life plus 195 years on appeal. State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App. 1993). A petition for post-conviction relief was denied by the trial court, and the denial was affirmed on appeal. Milburn L. Edwards v. State, No. M2002-02124-CCA-R3-PC, 2003 WL 23014683 (Tenn. Crim. App. Dec. 15, 2003). Two separate petitions for a writ of habeas corpus were summarily dismissed by the trial court, and their denials were affirmed on appeal. Milburn L. Edwards v. Cherry Lindamood, No. M2006-01092-CCA-R3-HC, 2007 WL 152233 (Tenn. Crim. App. Jan. 17, 2007), perm. app. denied (Tenn. April 16, 2007); Milburn L. Edwards v. State, No. M2004-01378-CCA-R3-HC, 2005 WL 544714 (Tenn. Crim. App. March 7, 2005), perm. app. denied (Tenn. Aug. 29, 2005). On March 15, 2008, the petitioner filed a third pro se petition for a writ of habeas corpus challenging his convictions on several grounds. The trial court dismissed his petition without the appointment of counsel or an evidentiary hearing. Following our review, we affirm the judgment of the trial court.

A Madison County jury convicted the defendant, Titus A. Miller, of simple possession of marijuana and evading arrest, both Class A misdemeanors. The trial court sentenced the defendant to eleven months, twenty-nine days for each conviction, to be served consecutively to each other and to a sixty-month federal sentence. The court ordered the defendant to serve the sentences in the county jail, with a release eligibility percentage of seventy-five percent. On appeal, the defendant argues that the evidence was insufficient to support his convictions and that the trial court erred by ordering him to serve his sentences consecutively. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgments of the Madison County Circuit Court.

A Shelby County jury found the defendant guilty of carjacking, a Class B felony, and the trial court sentenced him to ten years, six months, in the Tennessee Department of Correction. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction, and (2) the trial court improperly weighed the enhancement and mitigating factors in sentencing. Following our review, we affirm the judgment of the trial court.

I concur in the majority’s analysis of the ecclesiastical doctrine and its holding that we do not have subject matter jurisdiction of Mr. Redwing’s claims of negligent hiring and retention, but that we do have subject matter jurisdiction to adjudicate his claim of negligent supervision. I must dissent, however, from the majority’s holding that, as a matter of law, Mr. Redwing’s claim of negligent supervision is barred by the statute of limitations. I believe that, in this case, dismissal based on the pleadings is premature and that Mr. Redwing is entitled to conduct discovery on facts pertinent to whether the statute of limitations is tolled.

The Defendant, Shawn Macklin, is charged with sale of less than one-half gram of cocaine, a Class C felony. He sought pretrial diversion, and the prosecutor denied his request. Upon consideration of the Defendant's petition for writ of certiorari, the trial court found that the prosecutor did not abuse his discretion in denying pretrial diversion. We granted this interlocutory appeal to consider whether the trial court properly denied the writ of certiorari by finding that the prosecutor did not abuse his discretion. We hold that the trial court erred in finding that the prosecutor acted within his discretion. We reverse the order of the trial court and remand the case with instructions that the prosecutor shall reconsider the Defendant's application for pretrial diversion in light of only the relevant factors.

The defendant, Raymond Stanley Hilliard, appeals from his Sullivan County Criminal Court guilty-pleaded convictions of facilitation of possession of .5 grams or more of cocaine, two counts of the facilitation of the sale of .5 grams or more of cocaine, two counts of the possession of drug paraphernalia, possession of a legend drug, three counts of the possession of a schedule IV drug, possession of a schedule II drug, and maintaining a dwelling where controlled substances are used and sold. He argues that the trial court erred by ordering that he serve the entirety of his agreed seven-year effective sentence in confinement. Discerning no error, we affirm the judgments of the trial court.

R. L. Ayers operates several apartment complexes, some individually and some in his capacity as the general partner of the limited partnerships, Bluff Springs Apartments, Ltd., and Village Apartment, Ltd. As a consequence of these interests, he maintained several bank accounts with Peoples Bank of the South. This litigation focuses on seven of those accounts. Ayers has admitted – and in fact has pleaded guilty – to defrauding Peoples and two other local banks by “kiting” checks. It is undisputed that Peoples sustained substantial losses when the other banks discovered the scheme and dishonored checks, leaving Peoples holding several hundred thousand dollars worth of bad checks; however, the precise amount of the loss is in dispute. In August 2003, Peoples froze the accounts that had been opened by Ayers, but, with one exception, waited until September 29, 2006, to offset the monies in those accounts against its losses. Ayers, Bluff Springs and Village (collectively “the Plaintiffs”) filed this action asking for a declaration that Peoples wrongfully converted the funds in the seven accounts and violated the contracts under which the funds were deposited. The Plaintiffs also sought punitive damages. Peoples coupled its answer with a counterclaim. In its counterclaim, Peoples alleged that, after giving the Plaintiffs all credits to which they were due, it was left holding $429,300 in bad checks; it demanded a judgment for that sum. After a bench trial, the court held that Peoples only had a right of setoff against two accounts owned by Ayers individually. The court held that Peoples did not have a right of setoff against the accounts owned by the entities or the one opened in Ayers’ name for tenant deposits. However, the trial court found in favor of Peoples on its counterclaim and awarded it a judgment against Ayers in the amount of $429,221.65, subject to certain credits to be given. Initially, the trial court awarded both Peoples and the Plaintiffs prejudgment interest at the rate of 10%. On Peoples’ post-trial motion, the court cut the interest rate to 1%. Peoples appeals, arguing, primarily, that the three-year statute of limitations applicable to conversion claims bars all of the Plaintiffs’ claims. The Plaintiffs raise their own issuesincluding a challenge to (1) the trial court’s refusal to order the return of funds held in accounts designated for a special purpose, (2) the trial court’s reduction of pre-judgment interest on a post-trial motion, and (3) the amount of damages awarded on the counterclaim. We affirm.

Appellant, Donna Sue Mrozowski, pled nolo contendere to a Class B vehicular homicide charge stemming from an incident in which she drove her car off a highway, killing a pedestrian. Appellant and the State agreed to an eight year sentence but left the manner of service to be determined by the trial court. After a hearing, the court denied Appellant's request for alternative sentencing. Appellant now appeals, and we affirm.

A man receiving outpatient treatment from a psychiatrist shot and killed his wife and himself. Patient's daughter filed wrongful death actions on behalf of her mother and her father and a negligence action on her own behalf. The trial court granted summary judgment with respect to the wrongful death claim on behalf of the mother and the individual claim of the daughter. The wrongful death claim on behalf of father was voluntarily dismissed. We have concluded that Tenn. Code Ann. _ 33-3-206 does not apply in this case and that the trial court erred in granting summary judgment with respect to mother's and daughter's negligence claims.

The Defendant, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery, a Class B felony. See Tenn. Code Ann. _ 39-13-504(b). The trial court, applying the 2005 Amendments to our Sentencing Act, originally sentenced the Defendant to serve sixty-six years in the Department of Correction. On his first appeal, however, we reversed his sentences and remanded his case for resentencing under the 1989 Act. See State v. Saint, 284 S.W.3d 340, 348 (Tenn. Crim. App. 2008). Following a resentencing hearing, held on May 14, 2009, the trial court again sentenced the Defendant as a Range I, standard offender to eleven years for each of his six convictions, those sentences to be served consecutively to one another, for a total effective sentence of sixty-six years in the Department of Correction. On this appeal, the Defendant contends that the trial court erred in setting the length of his sentences and in ordering him to serve them consecutively. After our review, we affirm the judgments of the trial court.

The petitioner, Melvin S. Nettles, appeals the denial of post-conviction relief by the Davidson County Criminal Court. In 2007, he pled guilty to sale of less than 0.5 grams of cocaine, a Class C felony. Pursuant to a plea agreement, he received a twelve year sentence to be served on community corrections. He was also assessed a fine of $2,000. The trial court subsequently found that the petitioner violated his community corrections' sentence and ordered confinement. On appeal, the petitioner challenges the denial of his petition for post-conviction relief, claiming: (1) his guilty plea was not knowing and voluntary; and (2) he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Barbara Ann Riggs, was found guilty by a Knox County jury of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. __ 39-14-103; -105(4). The trial court imposed a Range I, six-year sentence to be served on probation consecutively to a one-year sentence in another case and set the amount of restitution at $28,600.95. In this appeal, the Defendant argues that the evidence was insufficient to support her conviction, that the trial court erred in enhancing her sentence based upon enhancement factors that were not found by a jury to exist beyond a reasonable doubt, and that the court erred in awarding restitution for attorney's fees and accountant's fees the victim incurred as a consequence of the crime. We affirm the judgment of the trial court.

After being indicted by the Gibson County Grand Jury, Petitioner, Clarence Edward Spinks, pled guilty on May 7, 2007, to three offenses. He was sentenced to an eight-year sentence, and the trial court ordered that sentence to be served consecutively to a previously-imposed sentence. On January 21, 2009, Petitioner filed a petition for post-conviction relief. The post-conviction court conducted a hearing to determine whether the petition was timely. Petitioner admitted that the petition was filed more than a year after the statute of limitations had run. The post-conviction court dismissed the petition based upon the statute of limitations. On appeal, Petitioner argues that the post-conviction court erred in dismissing his petition. After a thorough review of the record, we affirm the post-conviction court’s dismissal of the petition.

Haley Mariah Anderson and Macey Elizabeth Anderson ("the Children") by next friend and father, Mac Todd Anderson ("Father"), sued Paul E. Stanton, Jr. ("Stanton"), Hal Knight ("Knight"), Deborah Defrieze ("Defrieze"), d/b/a East Tennessee State University, University School ("University School") (or collectively "Defendants"), and the Washington County Board of Education seeking, in part, to prevent University School from withdrawing the Children from enrollment in University School due to alleged actions of the Children's mother, Treda Anderson ("Mother"). Defendants filed a motion for summary judgment. TheTrial Court held a hearing on Defendants' motion for summary judgment, entered an order granting Defendants summary judgment, and certified the order as final pursuant to Tenn. R. Civ. P. 54.02. The Children appeal to this Court the grant of summary judgment primarily raising an issue regarding procedural due process. We affirm.

James L. Hill ("the defendant"), in order to accommodate his son, Shannon Hill, co-signed a note to First Peoples Bank of Tennessee ("the Bank") in the amount of $50,500 ("the small note"). Shannon later approached the Bank about a larger loan for his pizza business. As a consequence, the small note was combined with two other notes. The Bank made a loan in the amount of $294,764.65 under a new note ("the big note") but required a personal guaranty from the defendant as security. Unbeknownst to the Bank, the guaranty Shannon produced was a forgery. Shannon was later killed and, still later, his pizza business defaulted on the big note. The Bank initially filed this action against the defendant on the sole basis of the guaranty. The Bank later amended its complaint to allege that the big note was a renewal of the small note and that the defendant remained liable on the small note. The primary issue for trial was whether the small note was renewed or whether it was satisfied with the proceeds from the big note. On the morning of trial, when the Bank's witnesses appeared, the chancellor announced that he was acquainted with several of the Bank's witnesses. The defendant made an oral motion seeking recusal of the chancellor. The court denied the motion and the case proceeded to a bench trial. After trial, the court entered a judgment in favor of the Bank which included the attorney's fees of the Bank. The defendant appeals. The Bank asks for its attorney's fees incurred on appeal. We affirm that part of the judgment which awards principal and interest, but vacate the award of attorney's fees claimed in the amount of $25,125 and remand for a determination of a reasonable fee. Additionally, we hold that the Bank is entitled, under the note, to recover reasonable attorney's fees incurred on appeal and remand for a determination of a reasonable appellate fee.

This case arises from a petition to enroll and modify a foreign decree on child visitation and support. Appellant/Father petitioned the Circuit Court at Shelby County to enroll and modify an Arkansas decree. Mother/Appellee contested the petition, alleging that she was still a resident of Arkansas, so that Arkansas retained exclusive, continuing subject matter jurisdiction. The trial court found that the Uniform Interstate Family Support Act was applicable, and also found that Mother was still residing in Arkansas so as to bar subject matter jurisdiction in favor of the Tennessee court. Because the case involves a petition to modify both child visitation and child support, we conclude: (1) that both the Uniform Interstate Family Support Act, and the Uniform Child Custody Jurisdiction and Enforcement Act are applicable,(2) that the trial court erred in finding that the Mother was residing in Arkansas at the commencement of this action, and (3) the Tennessee Court has jurisdiction to modify the Arkansas decree on child support and custody, and (4) that the trial court erred in dismissing Father’s petition to enroll, and modify the Arkansas decree. Reversed and remanded.

Developer sought approval to construct a planned development containing retail and office uses on property zoned in an agricultural district. The municipal planning commission recommended that the town’s board of commissioners deny the application for several reasons. Following a public hearing, the board of commissioners voted to deny the application based upon the recommendation of the municipal planning commission. The developer then brought a common law certiorari action, alleging that the board acted arbitrarily and illegally in denying its application. The trial court found that the board’s decision was based upon substantial and material evidence and dismissed the developer’s petition. The developer appeals. We affirm.

The Petitioner, Michael V. Morris, was convicted by a Davidson County Criminal Court jury of aggravated robbery, a Class B felony. He was sentenced as a Range III, career offender to thirty years at sixty percent in the Tennessee Department of Correction. He filed a pro se petition for habeas corpus relief in the Hickman County Circuit Court, which was summarily dismissed. On appeal, the Petitioner argues that his judgment is void because it violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); because, alternatively, the trial court improperly sentenced him under the 2005 amended sentencing act without a waiver, which resulted in a violation of ex post facto prohibitions; and because the trial court erred in classifying him as a career offender. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.