APPELLATE COURT OPINIONS

This appeal arises from the modification of a parenting plan in a post-divorce action. In the initial Permanent Parenting Plan, Mother was designated the primary residential parent of their son. Four years later, Father filed a Petition to Modify the Parenting Plan, alleging that multiple material changes in circumstances had occurred and that it was in the child’s best interest for Father to be the primary residential parent. While the petition was pending, Mother was involuntarily committed to a psychiatric facility; immediately thereafter, on Father’s pendente lite motion, the trial court designated Father as primary residential parent with sole decision-making authority pending further adjudication. Father then amended his Petition to enumerate additional material changes. Some eight months later, the trial court conducted a trial. The court found that Mother’s mental health, Mother’s attitude and untoward actions directed at Father, the child’s manipulation and power struggles with his parents; the child’s enrollment in an out-of-state boarding school, and multiple other factors demonstrated that a material change in circumstances had occurred and that it was in their son’s best interest for Father to serve as the primary residential parent with sole decision-making authority. Mother appeals claiming the trial court erred in determining that a material change in circumstances existed and that a modification was in the child’s best interest. We affirm.

The defendant, William Roger Henderson, III, pled guilty to two counts of attempted aggravated robbery,  Class C felonies.  The trial court sentenced him as a multiple offender  to serve nine years in the Department of Correction on each count, with the counts to run concurrently.  The trial court refused to give the defendant an alternative sentence, and the defendant appeals.  Having reviewed the record, we conclude that the trial court did not abuse its discretion in ordering the defendant’s confinement to prison, and we affirm the judgment of the trial court.

Residuary legatees appeal from the trial court’s denial of their motion to disallow compensation for executrix and estate’s attorney. Discerning no error, we affirm.

The issue presented in this premises liability case is whether a store owes a duty to protect its customer from a visibly intoxicated customer who was ordered to leave the store by store employees. A store patron sued a store for negligence after she was struck and injured in the store’s parking lot by a vehicle driven by another store patron. Store employees had refused to fill the other patron’s medical prescriptions because they believed she was intoxicated; she became belligerent, and store employees ordered her to leave the store knowing that she was alone and would be driving her vehicle. In response to the lawsuit, the store filed a motion to dismiss, contending that it did not have a legal duty to control the intoxicated patron after she left the store. The trial judge granted the store’s motion to dismiss. The Court of Appeals reversed, finding that the store owed the injured patron a duty of care to protect her from the intoxicated patron. Taking the plaintiffs’ allegations as true and drawing all reasonable inferences in her favor, we hold that the foreseeability of harm and the gravity of harm to the injured patron outweighed the burden placed on the store to protect the patron against that harm. Therefore, the store patron’s complaint contains sufficient allegations which, taken as true, establish that the store owed a duty of care to the injured patron. The trial court erred by granting the motion to dismiss.

The defendant, Jared Scott Aguilar, appeals from his Montgomery County Circuit Court jury convictions of six counts of sexual exploitation of a minor, see T.C.A. § 39-17-1003(a)(1), claiming that the trial court erred by denying his motion to suppress evidence seized pursuant to a search warrant, that the evidence was insufficient to sustain two of the convictions, that the counts of the indictment are multiplicitous, and that the 10-year effective sentence is excessive.  Discerning no error, we affirm the judgments of the trial court.

The defendant, Archie Elliott, also known as Archie Elliott, III, was indicted for two counts of aggravated cruelty to animals while he was employed by the Memphis Animal Shelter. He entered open pleas of guilty to these offenses and was sentenced, in each count, to two years confinement, with the sentences to be served concurrently. On appeal, he asserts that the trial court erred in both the length and manner of service of the sentences, which were to be served, as a Range I, standard offender, at 30%; that the court showed bias in statements regarding the court’s feelings regarding animals; and that the court erred in weighing the impact of letters opposing alternative sentencing. Following our review, we affirm the judgments of the trial court.

Inmate was serving a 47-year sentence for rape and attempted first degree murder. Inmate had a parole hearing in 2011, when he had 19 years of his sentence left to serve. Parole was denied, and Inmate’s next parole hearing was scheduled to take place six years later. Inmate challenged Parole Board’s decision to defer his next parole hearing for six years. The trial court held the Board acted lawfully in deferring Inmate’s next parole hearing for six years. We affirm the trial court’s judgment on appeal. Board members serve for staggered six-year terms, and Inmate will not be denied the opportunity for new Board members to review his request for parole six years from the date of his last hearing.

I fully concur in the majority’s conclusion that Wal-Mart owed a duty of reasonable care to its customers to prevent them from suffering harm and that the trial court erred in granting Wal-Mart’s motion to dismiss. I write separately, however, to reaffirm my view that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 372 (Tenn. 2009) (Holder, J., concurring and dissenting) (quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008) (Holder, J., concurring and dissenting)). See also Hale v. Ostrow, 166 S.W.3d 713, 720 (Tenn. 2005) (Holder, J., concurring and dissenting); Burroughs v. Magee, 118 S.W.3d 323, 338 (Tenn. 2003) (Holder, J., concurring and dissenting); Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 92 (Tenn. 2000) (Holder, J., concurring).

The defendant, James Allen Nix, was convicted by a Sumner County Criminal Court jury of burglary of a building other than a habitation and theft of property valued at $1000 to $10,000, both Class D felonies, and was sentenced by the trial court as a Range III, multiple offender to concurrent terms of eight years in the Department of Correction.  On appeal, he raises three issues relating to the trial court’s denial of his motion to suppress evidence obtained from his home pursuant to a search warrant.  The State argues that the defendant has waived consideration of these issues by his failure to include them in his motion for new trial.  We agree with the State.  Accordingly, we affirm the judgments of the trial court.

The Defendant-Appellant, Aaron Tate, was convicted by a Shelby County jury of one count of attempted especially aggravated robbery; one count of especially aggravated burglary; one count of employment of a firearm during a felony offense; one count of especially aggravated kidnapping; one count of aggravated kidnapping; two counts of aggravated assault; and one count of facilitation to commit aggravated assault. The trial court sentenced Tate as a Range II, multiple offender and ordered each of his sentences to be served consecutively, for an effective sentence of one-hundred-thirty-eight years’ imprisonment. In this appeal, Tate argues that the jury was not provided with an instruction consistent with State v. White, 362 S.W.3d 559 (Tenn. 2012); therefore, his “convictions for especially aggravated kidnapping and aggravated kidnapping offend due process.” He further argues that the trial court imposed an excessive sentence. Upon our review, we conclude that the absence of an instruction pursuant to White was harmless beyond a reasonable doubt as to Tate’s convictions for attempted especially aggravated robbery, aggravated burglary, and facilitation of aggravated assault. However, the lack of the White instruction was reversible error as to his convictions for aggravated assault charged in counts six and seven. Accordingly, we reverse Tate’s kidnapping convictions charged in counts four and five and remand the matter for a new trial as to those offenses. We modify count two and reduce the especially aggravated burglary conviction to aggravated burglary and remand for resentencing on this conviction. We reverse Tate’s conviction for employing a firearm during the commission of a dangerous felony offense and remand for a new trial on count three. In all other respects, the judgments of the trial court are affirmed.

The defendant, Nasir Hakeem, was convicted after a bench trial of two counts of sexual battery, a Class E felony, in violation of Tennessee Code Annotated section 39-13-505 (2010).  On appeal, he challenges the sufficiency of the convicting evidence, pointing to inconsistencies in the testimony of the State’s witnesses.  After a thorough review of the record, we conclude that the evidence was sufficient to support the convictions and we accordingly affirm the judgment of the trial court.

The Defendants, Wesley Clayton Nightwine and Ruby Michelle Bush, were indicted by the Montgomery County Grand Jury for various drug and firearms offenses following the execution of a search warrant at Mr. Nightwine’s residence.  The Defendants filed a motion to suppress the evidence seized, and the trial court granted that motion and dismissed the case as to each defendant.  The State appeals, asserting that the search warrant was valid and the evidence was admissible.  Upon review, we affirm the judgment of the trial court.

This appeal arises from a Complaint to Quiet Title and for Declaratory Relief filed by WalMart Stores East, L.P. Pursuant to a 2008 Quitclaim Deed, Wal-Mart conveyed, subject to a reversion clause, a one-quarter acre parcel to the defendant upon which stood a 1930’s era Fire Hall. The reversion clause states, in pertinent part, that fee-simple ownership of the property shall revert to Wal-Mart in the event the improvements are subject to any casualty. “Casualty” is defined in the deed to include a fire that results in damage to all or substantially all of the Fire Hall or damage that is not repaired within 180 days after the occurrence of such casualty. It is undisputed that substantially all of the Fire Hall was damaged following a fire that occurred on December 1, 2011. This action ensued, and Wal-Mart subsequently filed a motion for summary judgement contending fee-simple title reverted to Wal-Mart due to the December 2011 casualty. The defendant did not dispute the fact that substantially all of the Fire Hall was damaged by the fire; nevertheless, the defendant opposed the motion on the basis that the term “casualty,” as defined in the deed, is ambiguous. The trial court concluded as a matter of law that the term “casualty” was clear and unambiguous, that the damage resulting from the December 2011 fire constituted a casualty, and that the property reverted back to Wal-Mart. Therefore, the court granted summary judgment in favor of the petitioner. The defendant appeals. We affirm.

This is a dependency and neglect appeal. The father of the child at issue filed a dependency and neglect petition in the juvenile  court against the child’s mother. The juvenile court held that the parties’ son was dependent and neglected and designated the father as the primary residential parent. The mother appealed the juvenile court’s decision to the circuit court. The circuit court conducted a de novo trial on the father’s dependency and neglect petition. The circuit court noted the mother’s past drug use but also found that the mother had consistently had clean drug tests since the juvenile court proceeding. Nevertheless, the circuit court held that the child was dependent and neglected, so it left the father as the primary residential parent. The mother now appeals. Based on our review of the record, we hold that the facts as found by the circuit court do not amount to clear and convincing evidence that the son was dependent and neglected in the mother’s care. Therefore, we reverse and remand for further proceedings.

The plaintiff, who is the decedent’s daughter, filed this will contest action regarding the estate of the decedent on April 24, 2012. A previous will contest proceeding brought by another daughter of the decedent had been dismissed by the trial court through an order entered February 7, 2012. The trial court dismissed the instant will contest as barred by the final judgment in the previous in rem proceeding. The plaintiff appeals. Discerning no error, we affirm.

George E. Copple, Jr., and Suzette Peyton, attorneys who represented the administrator of the decedent’s probate estate, appeal from an order of the trial court holding them personally liable for expenses incurred by a non-party in responding to a subpoena duces tecum. One year after the subpoena was issued and the expenses were incurred by non-party Merrill Lynch, Pierce, Fenner & Smith, Inc., to comply with the subpoena, the attorneys for the administrator of the estate filed a motion to withdraw. Merrill Lynch did not object to the motion to withdraw, but did file a response requesting that its expenses to comply with the subpoena be assessed against the attorneys personally. The trial court granted leave to withdraw; however, the court did not relieve the attorneys as sureties for “costs to date including and limited to $776.00 incurred by Merrill Lynch in the reproduction of materials produced by Merrill Lynch to counsel for the Administrator.” In its order, the trial court stated that its ruling was based upon the record as a whole, including, but not limited to, Tennessee Rule of Civil Procedure 45. No other authority was cited in the order. The attorneys appeal. Being unable to identify any authority upon which to hold the attorneys personally liable for the expense of a non-party to comply with a subpoena duces tecum, we reverse.

In this wrongful death action, the plaintiffs alleged that after the deceased was involved in a single car accident, the investigating officer improperly allowed her to continue driving, resulting in her death when she had another wreck shortly thereafter. In the initial lawsuit, the defendants moved for summary judgment. The trial court found that the public duty doctrine applied and granted the motion. After the plaintiffs appealed, we held that under the public duty doctrine, disputed material evidence existed as to whether the officer assumed a specific duty to protect the deceased but then discontinued his aid and protection to her, thereby leaving her in a worse position than she was in before he intervened. We therefore reversed the summary judgment and remanded the case for further proceedings. Lynch v. Loudon Cnty., No. E2010-02231-COA-R3-CV, 2011 WL 4952778 (Tenn. Ct. App. Oct. 14, 2011). Upon remand the trial court found that the special duty exception did not apply and the public duty doctrine was a complete bar to the plaintiffs’ action. The court additionally concluded that Restatement (2nd) of Torts section 324 was not applicable and even if fault was compared, the fault of the deceased exceeded that of the officer by more than fifty percent. Accordingly, the trial court found that the claims of the plaintiffs must be denied. The plaintiffs again appeal. We affirm.

This appeal involves the proper procedure for persons desiring to obtain administrative and judicial review of a decision by the Tennessee Department of Environment and Conservation (“TDEC”) regarding the issuance or denial of a waste water and storm water discharge permit. After TDEC issued a final permit allowing the operator of a limestone quarry to discharge water into Horse Creek, the owners and managers of a neighboring wildlife sanctuary filed a petition with the Tennessee Water Quality Control Board (“Board”) seeking to appeal TDEC’s decision to issue the permit and also requesting the Board to issue a declaratory order regarding the proper interpretation of the Antidegradation Rule, Tenn. Comp. R. & Regs. 1200-04-03-.06. After the Board scheduled a contested case hearing, an administrative law judge dismissed the request for a declaratory order on the ground that Tenn. Code Ann. § 69-3-105(i) (2012) provides the exclusive procedure to obtain administrative review of TDEC’s decision to issue the discharge permit. Rather than pursuing the permit appeal already pending before the Board, the wildlife sanctuary filed a petition in the Chancery Court for Davidson County seeking a declaratory judgment regarding the proper interpretation of the Antidegradation Rule. The trial court granted the wildlife sanctuary’s motion for summary judgment and issued a declaratory judgment regarding the interpretation and application of the Antidegradation Rule to the permit at issue in this case. TDEC and the Board appealed. The Court of Appeals reversed the summary judgment on the ground that the trial court had failed to give “any deference to TDEC’s interpretation of the Antidegradation rule” and remanded the case to the trial court to conduct a trial “to determine the proper interpretation of the Antidegradation rule.” Pickard v. Tennessee Dep’t of Env’t and Conservation, No. M2011-02600-COA-R3-CV, 2012 WL 3834777, at *24-25 (Tenn. Ct. App. Sept. 4, 2012). We granted the Board’s and TDEC’s joint application for permission to appeal. We conclude that Tenn. Code Ann. § 69-3-105(i) disallows parties challenging the issuance of a discharge permit from seeking a declaratory order from the Board regarding matters involved in the issuance of the permit and requires that parties desiring to seek judicial review of a decision to issue a discharge permit must first exhaust their administrative remedies before seeking judicial review of TDEC’s decision. Because the wildlife sanctuary’s appeal from TDEC’s issuance of the discharge permit was still pending before the Board, the trial court should have declined to adjudicate the wildlife sanctuary’s petition for a declaratory judgment. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the trial court with directions to dismiss the petition because the wildlife sanctuary failed to exhaust its administrative remedies before the Board.

A multi-vehicle accident occurred in August 2010. The plaintiff initially named only one of the drivers involved in the accident along with the record owner of the driver’s vehicle. The record owner filed an answer identifying three other drivers/tortfeasors involved in the accident in December 2011,and the driver identified the same three individuals as tortfeasors in his answer that was filed seven months later, in July 2012. The plaintiff did not file an amended complaint adding the individuals identified as defendants until August2012, which was more than 90 days after the first answer was filed. One of the individuals named as a defendant filed a motion to dismiss, arguing the plaintiff waited too late to add her as a defendant. The trial court denied the motion. The late-added defendant appealed, and we reverse the trial court’s judgment.

This interlocutory appeal concerns an interstate custody dispute. Father attempted to register and modify the child custody provisions of a New Jersey judgment in Tennessee. Mother agreed to the registration but objected to the modification because she believed the trial court did not have subject matter jurisdiction to modify the judgment. The trial court disagreed and registered and modified the judgment. Mother pursued this extraordinary appeal pursuant to Rule 10 of the Rules of Appellate Procedure. Following our review, we hold that the trial court did not have subject matter jurisdiction to modify the judgment.

Father appeals the trial court’s amended judgment in this divorce action. Discerning no error, we affirm.

The Defendant-Appellant, Hollace Donte Richards, appeals from the Rutherford County Circuit Court’s order revoking his probation.  He previously entered guilty pleas to one count of theft of property valued over $500 but less than $1,000 and one count of sale of marijuana, a Schedule VI controlled substance.  Subsequently, Richards entered guilty pleas to one count of aggravated burglary and one count of failure to appear.  He was ordered to serve his four sentences consecutively for a total effective sentence of ten years in the Department of Correction.  The trial court ordered Richards to serve his two-year sentence for theft in confinement and suspended the other three sentences to be served on supervised probation. On appeal, Richards argues that the trial court abused its discretion by revoking his probation and ordering him to serve his entire sentence in confinement.  Upon our review, we affirm the judgment of the trial court.

The Petitioner, Jamelle M. Felts, appeals the denial of post-conviction relief, arguing that he received ineffective assistance of counsel.  He also appeals the denial of coram nobis relief, arguing that an eyewitness’s affidavit recanting his trial testimony is newly discovered evidence entitling him to a new trial.  Upon review, we affirm the denial of post-conviction relief and the denial of coram nobis relief.

The Defendant-Appellant, Mark Dunlap, appeals from the Sevier County Circuit Court’s order revoking his community corrections sentence. The Defendant previously entered guilty pleas to kidnapping, aggravated assault, attempted aggravated burglary, and vandalism. Pursuant to the plea agreement, the trial court sentenced the Defendant to an effective sentence of six years, which was suspended to time served with the balance of his sentence to be served in the community corrections program. On appeal, the Defendant argues that the trial court erred in ordering the Defendant to serve his sentences in confinement after revoking his community corrections and erred in imposing consecutive sentencing. Upon review, we affirm the judgment of the trial court.

This appeal involves an employee’s eligibility to seek reconsideration of a workers’ compensation settlement. An employee who sustained a compensable shoulder injury returned to work and settled his workers’ compensation claim. He was later laid off after his physician modified the restrictions for an earlier unrelated injury to his foot. Thereafter, the employee filed suit in the Chancery Court for Coffee County seeking reconsideration of the settlement of his shoulder injury. While this suit was pending,the employee returned to work as the result of a confidential settlement between his employer and the EEOC. Following a bench trial, the trial court determined that the employee could seek reconsideration of the settlement for his injured shoulder and awarded the employee additional disability benefits. The employer appealed and asserted that the employee was not entitled to seek reconsideration because, despite the layoff, he had never been “subsequently no longer employed by the pre-injury employer” as required by Tenn. Code Ann. § 50-6241(d)(1)(B)(ii)(2008). The 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 in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.