APPELLATE COURT OPINIONS

We granted the Rule 9, T.R.A.P., application of the appellant, Brent D. Laing, M.D. (“Laing”), in order to review the propriety of the trial court’s denial of Laing’s motion to amend his answer filed in litigation instituted against him and others by the appellee, Brenda J. Crowder, M.D. (“Crowder”). In the same order, we consolidated that interlocutory appeal with the appeal of Laing’s separate suit against Crowder, which latter appeal is before us as of right. See Rule 3(a), T.R.A.P. The claims asserted by Laing in the second suit are identical to those in the counterclaim which Laing attempted to pursue, albeit unsuccessfully, in the earlier litigation. We reverse the trial court’s denial of Laing’s motion to amend in the first suit. We dismiss, as moot, the appeal of Laing’s subsequent suit against Crowder.

While this case has ultimately been decided on a waiver issue, we granted this appeal to take the opportunity to address two very important issues of statutory construction in misdemeanor sentencing. The general issues may be framed as whether Tenn. Code Ann. § 40-35-209 and Tenn. Code Ann. § 40- 35-210 apply to misdemeanor sentencing. Specifically, the issues have been stated as: (1) whether a trial judge must state on the record, pursuant to Tenn. Code Ann. § 40-35-210(f), what enhancement or mitigating factors were employed in setting the sentence length in a DUI case; (2) whether a trial court must make specific findings on the record, pursuant to Tenn. Code Ann § 40-35-209(c), when fixing the percentage of a sentence to be served in incarceration under the misdemeanor sentencing statute; and (3) whether the appellate court erred in remanding this case for re-sentencing. We hold that §§ 40-35-209, - 210(f) are inapplicable to DUI sentencing and that the defendant's sentences should be affirmed.

This is a divorce case. The trial court granted Lori Vanhooser Robertson (“Wife”) a divorce on the ground set forth at T.C.A. § 36-4-101(3)1; awarded the parties joint custody of their 16-year-old son; ordered Gary Wayne Robertson (“Husband”) to pay Wife child support of $387 per month plus 21% of part of Husband’s future increases in net income; awarded Wife rehabilitative alimony of $250 per month for 12 months, beginning with the month of October, 1997; divided the parties’ property and debts; denied Wife’s request for attorney’s fees; and made other decrees not relevant to a resolution of the issues now before us. Wife appealed, raising issues that present the following questions for our review.

The plaintiff sued for injury suffered when she stepped into a hole in the asphalt surface of a parking lot provided for customers of Kroger Company. Kroger was dismissed by nonsuit, and the remaining defendants were dismissed by summary judgment. Plaintiff appealed and presented the following issue:

I. Whether a genuine issue of material fact has been raised by the plaintiff/appellant, so as to warrant this cause to be tried on its merits.

The defendant, Kevin Burns, was convicted of two counts of felony murder and two counts of attempted felony murder. The jury imposed the death penalty for one of the felony murder convictions after finding that evidence of an aggravating factor -- that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered -- outweighed the evidence of mitigating factors beyond a reasonable doubt. The jury imposed a life sentence for the other felony murder conviction.

In this divorce case, Mary C. Williams, hereafter “wife” has appealed from the judgment of the Trial Court awarding her a divorce from Si J. Williams, hereafter “husband,” custody, child support, alimony, insurance, fees and division of property.

In this divorce case, the defendant husband has appealed from a decree awarding the plaintiff a divorce on grounds of irreconcilable differences and dividing the marital estate. The husband has presented the issues in the following form:
1. The Trial Court rushed the trial, making it difficult for the defendant/appellant to fully present his case.
2. The Trial Court erred by awarding the plaintiff/appellee an interest in the defendant/appellant’s
separate property.
3. The Trial Court erred in refusing to make any division in marital property that was held solely in the plaintiff/appellee’s name.
4. The Trial Court erred in awarding the divorce to the plaintiff/appellee despite overwhelming grounds in favor of the defendant/appellant.

I concur with the results of this opinion. However, I am filing this separate opinion to clarify my understanding of the significance of the portion of the decision dealing with the need of the parties’ daughter for continuing support past her eighteenth birthday.

I concur with the results of this opinion. However, I am filing this separate
opinion to clarify my understanding of the significance of the portion of the decision
dealing with the need of the parties’ daughter for continuing support past her
eighteenth birthday.

This is a legal malpractice case. The malpractice action arose out of a lender liability lawsuit that was dismissed by the trial court because it had not been filed within the limitations period. Dismissal of the underlying lawsuit was affirmed on appeal by the Middle Section of this Court. Wilkins v. Third National Bank in Nashville, 884 S.W.2d 758 (Tenn. App. 1994), cert. denied, (Sept. 26, 1994). While not in the record before us, the facts of the underlying lawsuit contained in the aforementioned decision of the Middle Section will be helpful in understanding the facts of this appeal.

Plaintiff Lanny McCormack appeals the final judgment entered by the trial court in this dissolution of partnership case. In its final judgment, the trial court ordered Defendant/Appellee Zollie McCormack to pay Lanny McCormack $137,453 for all of the latter’s right, title, and interest in the McCormack Farms partnership. On appeal, Lanny McCormack has raised only one issue for this court’s review: whether the trial court, which previously had adopted a special master’s report, erred when it ruled that Lanny’s interest in the partnership would be resolved in a manner which was not one of three options set forth in the special master’s report. We affirm the trial court’s judgment.

The Hickman County Road Superintendent filed a declaratory judgment action to ascertain if an old cemetery road across the defendants’ property was a public road. The Chancery Court of Hickman County ruled that the road was not a public road but that the defendants’ property was subject to an easement created in a deed in their chain of title. Since the court granted relief that no one had sought, to individuals not parties to the action, we reverse.

Following an in camera proceeding, the trial court declared the parties divorced, and awarded the real property at issue to the husband. The wife filed a Motion to Alter and Amend, which resulted in a new hearing, and a new decree whereby the real property was equally divided between the parties. The husband claimed on appeal that the trial court erred in re-opening the case after his initial decree. We affirm the trial court, but we amend its final order to make sure there is no doubt that the parties have been legally divorced.

Following an in camera proceeding, the trial court declared the parties divorced, and awarded the real property at issue to the husband. The wife filed a Motion to Alter and Amend, which resulted in a new hearing, and a new decree whereby the real property was equally divided between the parties. The husband claimed on appeal that the trial court erred in re-opening the case after his initial decree. We affirm the trial court, but we amend its final order to make sure there is no doubt that the parties have been legally divorced.

The trial court granted the parties a divorce, divided the marital property, and awarded the wife permanent alimony. On appeal, the husband contends that the court should have adjusted the property settlement to take the wife’s post-separation dissipation of marital assets into account, and that it should have placed some limitations on the alimony award. We agree, and we modify the decree to incorporate the necessary changes.

The Defendant, Terry Dean Sneed, appeals as of right from a Unicoi County jury verdict convicting him of aggravated robbery, aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated rape.1 The trial court sentenced him to a total of one hundred and twenty-four ye ars; while the sentences for the rape convictions qualify as Range II, multiple offender, the other sentences are Range III, persistent offender. The Defendant appeals his
conviction. We affirm the judgment of the trial court.

The appellant, Cedric Stampley, appeals as of right the denial in the Shelby County Criminal Court of his petition for post-conviction relief. The trial court dismissed appellant’s pro se petition without the appointment of counsel and without an evidentiary hearing. On appeal, appellant argues that the trial court erred in summarily dismissing his petition. We affirm the judgment of the trial court.

This appeal involves a motion to modify an alimony award. Appellant, Thomas Henry Campbell (Husband), appeals from the Chancellor’s order denying his motion to modify alim

This case involves restrictive employment covenants. The plaintiff and the defendant are both private security companies. The trial court granted the plaintiff a restraining order enjoining the defendant from inducing former employees to breach the restrictive covenants in other states, from misrepresenting facts concerning the enforceability of the covenants, or from litigating or assisting others in litigating in other states regarding the enforceability of the restrictive covenants. We affirm in part, reverse in part, and remand.

This appeal involves a petition for grandparent visitation filed by plaintiff, Regina Ellison, paternal grandmother of Garrett Ellison and Ethan Wayne Ellison, minor children of defendant, Cherri Ellison, and Terry Ellison, deceased. After an evidentiary hearing, the trial 2 court granted visitation. Cherri Ellison (Mother) has appealed and presents the following issues for review as stated in her brief:
1. Whether Tenn. Code Ann. § 36-6-306 is unconstitutional because it authorizes courts to order grandparent visitation upon a finding that such visitation is in the “best interest” of the child without first requiring the finding of a danger of substantial harm to the child.
2. Whether the evidence preponderates against the trial court’s award of visitation rights to the appellee.

Defendant Charles E. Campbell (Husband) appeals the final decree of divorce entered by the trial court which distributed the parties’ property and ordered Husband to pay child support and alimony to Plaintiff/Appellee Brenda S. Cunningham Campbell (Wife). On appeal from the final decree, Husband contends that the trial court erred in the following respects: (1) in imputing income of $2,000 per month to Husband for purposes of calculating his child support obligation; (2) in allocating to Husband a $2,600 debt with the Hardin County Bank; (3) in awarding Wife the marital home valued at $44,000; and (4) in awarding Wife $150 per month and other amounts as alimony. We affirm.

This case involves the efforts of the State of Tennessee on relation of Deborah D. Willis, former wife of Cecil Willis, Jr., to obtain the revocation of a surrender executed by him surrendering his three children, Deborah May, Pamela R. and Andrew V. for adoption. The Juvenile Judge, who witnessed the surrenders, later entertained the petition to revoke and ordered the surrenders to be revoked. The respondent, Cecil Willis, Jr., has appealed to this Court, presenting the following issue: I. Whether a Trial Court has authority to revoke a “surrender of Child” by the natural father directly to the natural mother and stepfather almost four (4) years after its execution. Furthermore, whether a surrender simply becomes void after the passing of 120 days when an adoption has not yet occurred.

I concur in the result reached by the majority opinion. However, I write separately to express my concern with the language on page 10 of that opinion which states that, “[i]n order to be compelling enough to warrant the dramatic remedy of changed custody, the change of circumstances must be such that ‘continuation of the adjudicated custody will substantially harm the child.’” I acknowledge that this language appears in Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. App. 1995), an opinion of the middle section of this court. However, I further note that Wall cited Contreras v. Ward, 831 S.W.2d 288 (Tenn. App. 1991). Contreras was a parental relocation case which stated the long recognized rule that “the best interest and welfare of the child must be the primary focus of attention.” Contreras, 831 S.W.2d at 290. The court also cited with approval from Sartoph v. Sartoph, 354 A.2d 467, 473 (Md. Ct. Spec. App. 1976), wherein the Maryland Court of Special Appeals stated that “[t]he custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, the change in conditions must have occurred which affects the welfare of the child and not that of the parents.”