APPELLATE COURT OPINIONS

This is a divorce case. Plaintiff-appellant Cheri Owens Tuncay was granted a divorce on the ground of inappropriate marital conduct. Mrs. Tuncay appeals the trial court’s division of the marital debts as well as the court’s failure to award her alimony beyond $5,000 in attorney fees.

This is a divorce case.  On appeal, Brenda Pierce (wife) raises the issues of whether the tril court erred by refusing to grant her periodic alimony, by failing to grant her the divorce, and by failing to grant her discretionary costs and attorney's fees. We modify the judgment and affirm as modified.

In this divorce action, the appellant (husband) appeals from the judgment of the trial court questioning the amount of child support he was ordered to pay, the division of marital property and alimony, including the amount, nature, and duration. The appellee (wife) seeks attorney fees for this appeal. No issue is presented relating to the granting of the divorce. We note that at the time of the trial, the husbanc had more than enough life insurance in force to satisfy this requirement.

This is an action whereby the plaintiff seeks to enforce a convenant not to compete in an employment agreement between the defendant, Warren, and the plaintiff. The defendants moved for summary judgment. The motion did not set out any grounds for relief but simply stated that defendants "file this motion for Summary Judgment, pursuant to Rule 56 of the Tennesse Rules of Civil Procedure" and referred the court to grounds stated in their briefs in support of themotion. The brief is not included in the record. Apparently, the parties did not make a designation of record and the Clerk of the court correctly omitted the brief pursuant to Rule 24, Tennessee rulesof Appellate Procedure.

Charles Ray O’Quinn, the petitioner, appeals pursuant to Rule 3, Tennessee Rules of Appellate Procedure, from the trial court’s dismissal of his petition for writ of habeas corpus. On July 27, 1989, the petitioner pleaded guilty to two counts of aggravated rape. The offenses occurred in April or May, and in June, 1988. He received Range II sentences of 35 years in the aggregate. The petitioner contends that his convictions for aggravated rape are void because the indictment failed to allege the mens rea for that offense. See State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997).

In this slip and fall case in which a child slipped on some ice cubes in the vestibule of a large department store, the jury returned a verdict for the plaintiff but attributed 70 % of the fault to the unknown person who placed or dropped the ice on the floor. Ruling on a post-trial motion, the trial judge held that the store’s fault was 100% because the plaintiff could not sue the unknown tortfeasor. On appeal, the defendant asserts that there is no evidence to support the verdict and that the trial judge erred in modifying the jury’s verdict with respect to the degree of fault. We find that there is evidence from which the jury could have found that the store was negligent and that the store cannot attribute part of the fault to the unknown tortfeasor. We, therefore, affirm the lower court’s judgment.

This appeal involves the construction of a home. Plaintiffs engaged one of the defendants, Donald Van Hise, (hereafter, the defendant) to construct a home on their property. On May 24, 1994, defendant signed a proposal to construct the house, reserving the right to withdraw the proposal within 30 days, if not accepted by plaintiff. One of the plaintiffs signed an acceptance of the proposal. The other did not. On June 25, 1994, defendant tendered another proposal on different terms, which proposal was accepted by both plaintiffs. The second proposal contained an estimated time of completion of 3-1/2 - 4-1/2 months. Both proposals contained a base contract price subject to revision for changes during construction. Both contracts refer to “plans and specifications” but the record contains no plan and only a partial set of specifications. The plans and specifications were not specifically prepared for plaintiffs, but were “generic,” that is, sold on the general market, to be altered as desired; and alterations were made, producing part of the present controversy. Promptly after the second proposal was accepted.

The defendant, Donnie F. Pollock, has appealed from the judgment of the Trial Court awarding the plaintiff a divorce on grounds of adultery and inappropriate marital conduct, awarding plaintiff, $8,000.00 alimony in solido and $500.00 per month alimony until she reaches 65 years or one of the parties dies; ordering defendant to pay $2,400.00 of plaintiff’s attorneys fees, and distributing the marital estate and liability for debts.

The State of Tennessee filed a petition to rehear in the above styled case on November 24, 1997. The State contends this court should rehear the case pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. Specifically, it contends our decision 1) conflicts with existing case law, 2) conflicts with a principle of law, and 3) overlooks a material fact upon which the parties were not heard. It is the opinion of this court that the motion is not well taken and, therefore, should be denied.