APPELLATE COURT OPINIONS

Garnishor obtained a final judgment which held Garnishee liable for full amount of outstanding debt of the judgment-debtor. The trial court granted Garnishee’s motion to alter or amend and vacated the conditional judgment and the final judgment against the Garnishee; Garnishor appeals. Finding no error, we affirm.

This case involves the trial court’s award of attorney’s fees to the defendant property buyer upon remand from this Court. The sellers initiated the original action for specific performance and breach of contract after the buyer refused to close on the purchase of real property. The buyer filed a counterclaim requesting attorney’s fees. The buyer subsequently moved for summary judgment, arguing that the sellers had been the first to breach the contract by failing to fulfill a condition precedent. The trial court granted summary judgment in favor of the buyer, and the seller appealed. Upon that original appeal, while this Court affirmed summary judgment, the issue of attorney’s fees was not raised. Following this Court’s remand to the trial court, the buyer moved for an award of attorney’s fees, pursuant to a default provision of the parties’ agreement. After conducting a post-remand hearing, the trial court awarded the buyer attorney’s fees in the amount of $106,485. The seller appeals. We conclude: (1) that the buyer abandoned its counterclaim for attorney’s fees by failing to question the finality of the summary judgment and by failing to raise the issue during the first appeal and (2) that the trial court exceeded its authority by considering the buyer’s post-remand motion. We therefore vacate the trial court’s award of attorney’s fees.

Father of two children appeals the termination of his parental rights on the grounds of abandonment by failure to support and the finding that termination of his parental rights would be in the best interest of the children. Finding no error we affirm.

This appeal involves the compensability of an alleged aggravation of a pre-existing degenerative back condition. After the employee began experiencing increased and more severe pain in his back, he filed a workers’ compensation claim in the Chancery Court for Marshall County against his employer, its insurer, and the Second Injury Fund. Following a bench trial, the trial court awarded the employee temporary total and permanent partial disability benefits. The employer’s appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tenn. Sup. Ct. R. 51. We affirm the judgment of the trial court.

Appellants Ronald L. Carroll and John Boyde Collett stand convicted of especially aggravated robbery. The trial court sentenced Appellant Carroll to serve fifteen years as a violent offender and sentenced Appellant Collett to serve seventeen years as a violent offender. On appeal, the appellants argue that (1) the evidence was insufficient to support their convictions for especially aggravated robbery; (2) the victim’s coaching of an essential witness should have resulted in a mistrial; and (3) the prosecutor violated the appellants’ right to remain silent during closing arguments. Following our review, we affirm the judgments of the trial court.

The Petitioner, Cameron Winselle, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his petition for post-conviction relief. However, this court is without jurisdiction in this case because the Petitioner failed to comply with the requirements of Tennessee Code Annotated section 40-30-117(c). Accordingly, the appeal is dismissed.

Following a jury trial in 2008, Petitioner, Kenneth Allen, was ultimately convicted of two Class B felony cocaine offenses and two Class C felony cocaine offenses. He was sentenced to serve an effective sentence of thirty years as a career offender. The trial court ordered the effective thirty-year sentence to be served consecutively to an unrelated sentence of ten years for additional drug convictions for which his probation had been revoked. See State v. Kenneth Gregory Allen, No. M2009-00070-CCA-R3-CD (Tenn. Crim. App. Aug. 24, 2010). Petitioner filed a post-conviction petition attacking his 2008 convictions. After an evidentiary hearing the trial court denied relief. Petitioner has appealed arguing that he received ineffective assistance of counsel. After a thorough review we affirm the judgment of the trial court.
 

The issue in this slip-and-fall premises liability case is whether the trial court correctly granted summary judgment to the defendants. Petros Goumas (“plaintiff”), the fiancé of the daughter of defendants Jimmy Mayse and wife, Barri Mayse, was staying at the defendants’ house for an extended visit. Plaintiff was working outside in the yard, helping to clear away dead brush and trees from the property, when he stepped on a rock, slipped, fell, and broke his arm. The trial court held that plaintiff presented no proof that the rock (1) was in any way unusual or posed any particular danger, (2) was hidden or concealed, or (3) created any kind of defective or dangerous condition. The court concluded that there was no proof of a known or foreseeable unreasonable risk of injury created by the condition of defendants’ property. Consequently, the court held, as a matter of law, that defendants owed no duty to plaintiff. He appeals. We affirm.

A Davidson County Grand Jury returned an indictment against Defendant, Henry Wayne Russell, charging him in Counts One, Three, and Five with rape; and in Counts Two, Four, and Six with statutory rape by an authority figure. After a jury trial, Defendant was found guilty as charged in the indictment. The trial court merged the convictions in Count Two with Count One; Count Four with Count Three; and Count Six with Count Five. The trial court imposed a sentence of fifteen years for each count of rape as a Range II offender for a total effective sentence of thirty years. On appeal, Defendant argues that: (1) the evidence was insufficient to support his convictions for statutory rape by an authority figure; (2) the trial court erred by denying his motion under Tenn. Rule Evid. 412 to allow evidence of C.L.’s sexual behavior; (3) the trial court erred by advising Defendant that the State would be permitted to cross-examine him concerning his prior felony drug convictions; (4) the trial court erred by allowing a forensic social worker to testify concerning the victim’s medical history; (5) the trial court erred in refusing to instruct the jury on the lesser-included offense of attempted rape; and (6) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments of the trial court.

V.H. (“Mother”) appeals the order terminating her parental rights to her four minor children, S.H., R.L.R. III., M.B and K.C.B. (“Children”). The Children were placed in the temporary custody of the Department of Children’s Services (“DCS”) based on allegations of lack of supervision, physical abuse, and Mother’s drug use. The Children were subsequently adjudicated as being dependent and neglected. After a trial, the court found that there was clear and convincing evidence to establish the existence of multiple grounds for termination and that termination was in the best interest of the Children. Mother appeals. She challenges the court’s denial of her motion to continue the trial and its best interest determination. We affirm.

A commercial truck driver was injured while sitting in the passenger seat with another person driving. The question presented is whether the passenger qualified as an employee and was, therefore, excluded from benefits under the trucking company’s liability insurance policy. We agree with the trial court’s conclusion that the passenger was an employee when the accident occurred.

This appeal involves post-divorce parental relocation. The parties were divorced in Tennessee, and the mother was designated as the primary residential parent for the parties’ minor child. After the divorce, the mother graduated from a nurse practitioner program and obtained a job offer in Mississippi. She notified the father of her intent to relocate with the parties’ child. The father objected and filed a petition opposing her relocation. At trial, the father argued that the proposed relocation did not have a reasonable purpose under Tenn. Code Ann. § 36-6-108(d)(1), in that the mother failed to apply for nurse practitioner jobs in Tennessee. The trial court agreed with the father and denied the mother permission to relocate with the child. The mother appeals. We hold that, by failing to submit proof of comparable jobs in Tennessee for which the mother was qualified, the father did not meet his burden of proving that the mother’s proposed relocation did not have a reasonable purpose. Therefore, we reverse.

This is a medical malpractice action brought against the State of Tennessee and others. The issue as to the appealing State is whether the plaintiffs complied with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121 (2012 & Supp. 2013). The State argues that the plaintiffs were required to send the pre-suit notice applicable to their claim against the State to either (1) the Attorney General of Tennessee or an Assistant Attorney General, or (2) the Division of Claims Administration of the State. The Tennessee Claims commission denied the State’s motion to dismiss, finding (1) no statutory authority requiring that pre-suit notice as to the State be served upon one of the parties alluded to by the State, and (2) that the State received adequate pre-suit notice in this case. We affirm and hold that the plaintiffs complied with Section 121’s pre-suit notice requirements by providing notice to the University of Tennessee Graduate School of Medicine, a health care provider, which entity is a division of an agency of the State of Tennessee and also a named defendant in this case.

A mother and father divorced and the trial court ordered the father to pay the mother $50 a week as support for their two children. The children subsequently came into the legal custody of their maternal grandfather, but the court did not order support. Ten years later, the Tennessee Department of Children’s Services filed a petition to set child support against the father. After a hearing which the father did not attend, the trial court increased his child support obligation to $333 a month and declared that he owed back support of $31,635, which he was ordered to pay in monthly installments. Four years later, the father, acting pro se, filed a petition to modify the support order. The trial court dismissed the father’s petition, declaring only that its previous order was a valid one. Because there was an existing support order for the two children, the appropriate proceeding would have been one to modify that order. The requirements for modification were not met, and the trial court exceeded its authority by assessing an arrearage based upon an amount different from the amount set in the existing order. We accordingly hold that the father was entitled to Relief from a Final Order under Tenn. R. App. P. 60.02(5), and reverse the trial court’s denial of that relief. We also vacate the trial court’s earlier order imposing on the father a duty to pay a modified amount of support and retroactive child support.

The Defendant, Jeffery Newton, was convicted by a Marion County Circuit Court jury of attempt to commit aggravated assault, a Class D felony. See T.C.A. § 39-13-102 (2010). The trial court sentenced the Defendant as a Range I, standard offender to two years and nine months with thirty days to serve in confinement and the remainder to serve on probation. On appeal, he contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erroneously denied his motion to dismiss the indictment, (3) the trial court erred during jury instructions, and (4) his sentence is excessive. We affirm the judgment of the trial court.

Petitioner, Christopher Rodney Butler, appeals the dismissal of his petition for post-conviction relief in which he alleged ineffective assistance of counsel at trial. More specifically he contends that (1) trial counsel failed to “solicit” the testimony of Albert Sweat; (2) trial counsel failed to depose the State’s witnesses prior to trial; and (3) trial counsel failed to obtain video surveillance footage from the cameras at the “Mix Factory in Jackson, Tennessee showing that he had been approached by a young black man, who drove him to the purported crime scene.” After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel, and we accordingly affirm the judgment of the post-conviction court.

Following a jury trial, the Defendant, Lorenzo Spencer, was convicted of aggravated burglary. See Tenn. Code. Ann. § 34-14-403. The trial court sentenced the Defendant as a Range III, persistent offender to a ten-year sentence. On appeal, the Defendant contends that the evidence presented at trial was insufficient to support his conviction. Following our review, we affirm the judgment of the Shelby County Criminal Court.

Former tenant of an apartment complex whose lease was terminated for an alleged breach sued alleging violations of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. Specifically, the former tenant contends the defendant failed to make reasonable accommodations in violation of Tenn. Code Ann. § 4-21-601(b)(2)(B); she also contends it intentionally discriminated against her due to her disabilities in violation of Tenn. Code Ann. § 4-21-311(e). The defendant denied all claims and moved for summary judgment contending the plaintiff could not establish essential elements of her claims;it also contended it terminated the lease on legitimate, nondiscriminatory grounds. The trial court summarily dismissed the complaint, finding there were no genuine issues of material fact as to whether the landlord violated the Tennessee Human Rights Act. We affirm.

The defendant was convicted by a jury of reckless homicide, first degree (felony) murder and two counts of facilitation of attempted first degree murder. These convictions all sprang from an incident in which shots were fired at three men in a car during an attempted robbery. To establish the defendant’s identity as the murderer the State introduced evidence at trial of a separate carjacking and shooting committed by the defendant and an accomplice several hours prior to the homicide. The defendant, who had pled guilty to the attempted first degree murder of the carjacking victim prior to trial on the instant charges, asserts on appeal that the two incidents were subject to mandatory joinder and that he could not be tried for the charges in the present indictment after he had pled guilty to the attempted first degree murder. He also appeals the trial court’s decision to admit the evidence of the carjacking, the trial court’s limits on cross-examination of a witnesses, the trial court’s evidentiary decisions regarding hearsay, and the trial court’s denial of a mistrial. After a thorough review of the record, we conclude that there was no error and we affirm the judgments of the trial court.

This is a termination of parental rights case. Father’s parental rights were terminated on the grounds of Tenn. Code Ann. § 36-1-113(g)(9)(A)(vi), failure to establish/exercise paternity; Tenn. Code Ann. § 36-1-113(g)(1), abandonment for willful failure to visit; Tenn. Code Ann. § 36-113(g)(2), substantial non-compliance with a permanency plan; and Tenn. Code Ann. § 36-1-113(g)(3), persistent conditions. We reverse in part and we affirm in part; we affirm the termination of Father’s parental rights to Aiden W.

Mother appeals the trial court’s denial of her petition to modify child support. We reverse and remand for entry of a judgment setting child support in accordance with this opinion and for an award of attorney fees to Mother.

The petitioner, Walter Ware, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel. Based upon our review, we affirm the judgment of the post-conviction court.

This is a post-divorce action involving a modification of the defendant’s child support obligation. Because the order from which the plaintiff appealed adjudicated fewer than all of the claims of the parties, it was not a final appealable order pursuant to Tennessee Rule of Appellate Procedure 3(a). We must therefore dismiss this appeal for lack of subject matter jurisdiction.

The defendant, Mitchell Nathaniel Scott, entered a plea of guilty to one count of aggravated child abuse. Prior to a sentencing hearing, the defendant filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, the defendant contends that the trial court erred in denying his motion because he provided sufficient evidence to demonstrate a “fair and just reason” that would justify the withdrawal of his guilty plea. After a review of the record, we affirm the judgment of the trial court.

In this divorce action, Father appeals the denial of his motion to suspend Mother’s parenting time and the decision to lower Mother’s child support; he also requests that this court modify the residential parenting schedule. Mother appeals the trial court’s calculation of the number of days she exercises parenting time in determining the amount of child support she was ordered to pay. Finding that the court erred in its calculation of Mother’s residential time, we vacate the award of child support and remand for recalculation; in all other respects, the judgment is affirmed.