APPELLATE COURT OPINIONS

A Van Buren County jury convicted the Petitioner, Jerrie Bryant, of second degree murder. This Court affirmed the Defendant’s convictions,but we vacated her sentences and remanded the case for resentencing. State v. Jerrie Bryant, No. M2007-02057-CCA-R3-CD, 2008 WL 544650, *1-13 (Tenn. Crim. App., at Nashville, Feb. 20, 2008), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition for post-conviction relief alleging she received the ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and the Petitioner now appeals. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Wife appeals the trial court’s decision to substantially reduce her alimony, contending there has not been a substantial and material change of circumstances. The parties were divorced in 2005 following a thirty year marriage. In 2008, Husband filed a petition for modification of alimony. The trial court held that a decrease in Husband’s income constituted a substantial and material change of circumstance, which warranted the reduction in alimony. The trial court also held that Husband was entitled to interest on overpayments of alimony. Wife appealed. We reverse based on the finding that there was not a substantial and material change of circumstance. We also find that although Husband is entitled to recover overpayments of alimony following the first appeal, he is not entitled to interest on the overpayments. Wife has requested her attorney’s fees. Applying the principles stated in Gonsewski v. Gonsewski, __S.W.3d __, 2011 WL 4116654 (Tenn. Sept. 16, 2011), we find Wife is not entitled to recover her attorney’s fees on appeal.

Rodney T. Rzezutko and Sandra Rzezutko (“Defendants”) appeal a Circuit Court order dismissing Defendants’ appeal of a General Sessions Court interlocutory order dated September 21, 2010. U.S. Bank National Association, as trustee (“Plaintiff”) raises an issue on appeal with regard to the Circuit Court vacating the General Sessions Court’s September 21, 2010 order. We find and hold that the Circuit Court lacked jurisdiction to hear an interlocutory appeal of a General Sessions Court order. The Circuit Court, therefore, correctly dismissed Defendants’ appeal. We affirm this dismissal. However, as the Circuit Court lacked jurisdiction, it was error to vacate the September 21, 2010 General Sessions Court order. We, therefore, vacate that portion of the Circuit Court order vacating the September 21, 2010 order, and reinstate the September 21, 2010 General Sessions Court interlocutory order.

The defendant contractor entered into a contract to replace a roof. When the newly installed roof developed leaks, the defendant hired an independent contractor to make the necessary repairs. While performing the work, the independent contractor caused a fire, resulting in an $871,069.73 insurance claim by the homeowners. As subrogor to the homeowners’ rights and claims arising out of the fire, the plaintiff insurance company sued the defendant in both tort and in contract. The defendant filed a motion for summary judgment, asserting that because he had subcontracted the work, he could not be liable. The trial court granted the motion on both the negligence and breach of contract claims. The Court of Appeals reversed, holding that the defendant had a non-delegable contractual duty to perform the roofing services in a careful, skillful, and workmanlike manner. This Court granted the defendant’s application for permission to appeal in order to determine the propriety of the claim under the theory of contract. Because the defendant had an implied non-delegable duty to install the roof in a careful, skillful, diligent, and workmanlike manner, the judgment of the Court of Appeals is affirmed. The case is remanded to the trial court for proceedings consistent with this opinion.

Defendant-Appellee, Clifford Edward Clark, was indicted by the Knox County Grand Jury for vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony, and reckless endangerment committed with a deadly weapon, a Class E felony. Clark filed several motions to suppress evidence and dismiss the indictment because of lost or destroyed evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), which were denied. Clark then filed a motion to reconsider, which the trial court took under advisement. The trial court subsequently dismissed the indictment and suppressed certain evidence pursuant to both Ferguson and Arizona v. Gant, 129 S. Ct. 1710 (2009). In this appeal by the State, it argues that the trial court abused its discretion in dismissing the indictment and erred in granting Clark’s motions to suppress based on its holdings that: (1) the search of Clark’s vehicle violated Gant, and (2) the State’s loss or destruction of certain evidence violated Ferguson. Upon review, we reverse the trial court’s judgment, reinstate Clark’s indictment, suppress the photographic evidence of the camera housing, and remand for trial.

The plaintiff in this automobile accident case has filed a notice of appeal from an order entered on July 26, 2011, granting him a judgment in the amount of $250,000. Because the trial court has set aside the judgment and set the case for a jury trial, we dismiss the appeal for lack of a final judgment.

This is a premises liability case in which the Plaintiff/Appellant, a resident of Defendants/Appellees’ condominium complex, was assaulted by unknown individuals. Appellant filed suit, asserting negligence on the part of Appellees in failing to timely repair a vehicle access gate on the property. The trial court granted summary judgment to Appellees, finding that Appellees owed no duty to Appellant as the harm was not reasonably foreseeable. We conclude that the evidence creates a dispute as to whether the underlying assault was foreseeable and, therefore, the grant of summary judgment was erroneous. Reversed and remanded.

This is an appeal of an alimony award. The trial court entered an order declaring Husband and Wife divorced, but reserved all financial issues, including alimony, for trial at a later date. After the trial, the trial court entered a final order awarding Wife rehabilitative alimony and ordering her to undergo a vocational rehabilitation evaluation. Husband filed a petition for contempt and to modify the final order based on Wife’s failure to file proof of her completion of a vocational rehabilitation evaluation. In response, Wife filed proof of her completed vocational rehabilitation evaluation, and filed a counter-petition for contempt and to modify the final order seeking alimony in futuro. Subsequently, Wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.01, arguing that the language of the final order failed to include the trial court’s findings that the alimony award was not final, and was subject to change based on the results of the vocational rehabilitation evaluation. The trial court granted Wife’s Rule 60.01 motion, and conducted a hearing to determine the appropriate nature and amount of alimony to be awarded based on the results of the vocational rehabilitation evaluation. Following the hearing, the trial court awarded Wife alimony in futuro, increased the amount of alimony awarded, and required Husband to maintain additional life insurance to secure his alimony in futuro obligation. Husband appeals the order granting Wife’s Rule 60.01 motion, and further argues that Wife was required to show a substantial and material change of circumstances to warrant a modification of the original rehabilitative alimony award. Finding that the trial court’s alimony award was not final, and therefore the trial court retained jurisdiction to consider the results of the vocational rehabilitation evaluation, we affirm the trial court’s award of alimony in futuro.

This appeal concerns the termination of parental rights. The mother is appealing the juvenile court’s judgment terminating her parental rights. The child at issue was initially taken from his mother’s custody by the Tennessee Department of Children’s Services after his school reported excessive tardiness and absences. The juvenile court determined that the child was homeless, and that the mother would not provide for his needs. The child was placed with a relative. Lengthy proceedings ensued. The Department filed a petition to terminate the mother’s rights, which was eventually tried by the juvenile court. The juvenile court terminated the mother’s parental rights, and the mother now appeals, arguing that the State failed to prove by clear and convincing evidence any statutory grounds for termination, failed to prove that it made reasonable efforts to reunify, and failed to prove that the termination of her parental rights was in the best interest of the child. We affirm.

The Defendant, Jeremy Brandon Scott, pled guilty to aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2006) (amended 2009, 2010, 2011). Although he was sentenced as a Range I, standard offender to three years and six months with six months’ confinement, a conflict exists regarding the length of probation. On appeal, the Defendant contends that the trial court erred by denying his request for judicial diversion and his request for three years’ probation. We affirm the denial of judicial diversion and the imposition of six months’ confinement. We vacate the judgment of the trial court and remand the case to the Davidson County Criminal Court for clarification of the length of probation and entry of a corrected judgment.

Alan Howard Peters was seriously injured when his vehicle collided with logs that had rolled off a truck. He and his wife filed this personal injury action and thereafter settled their claims against the defendant tortfeasors for policy limits of $1 million. In doing so, they reserved their claim against the uninsured motorist (“UM”) carrier, Cincinnati Insurance Company (“CIC”). The UM provisions in effect with CIC were set forth in an endorsement to a 2005 renewal of an umbrella policy. The UM endorsement to the original policy issued in 1999 and to the first renewal issued in 2002 expressly limited UM coverage to $1 million. A space in the 2005 renewal endorsement form that was intended for insertion of the UM policy limits was left blank, which, by default, rendered the limits of the UM endorsement equal to the $2 million liability limits of the umbrella policy. After the dismissal of the claims against the tortfeasors, CIC amended its answer to include a counterclaim asking the court to reform the policy to make the UM limits equal to the $1 million limits of the previous policies. The trial court entered an order reforming the policy. Subsequently the court entered an order dismissing the remaining claim against CIC. Mr. and Mrs. Peters appeal. We affirm.

American Express Bank, FSB, sued Michael Fitzgibbons on a sworn account for unpaid credit card debt. It later sought summary judgment. Following a hearing, the trial court granted the motion and entered a judgment against Fitzgibbons for $25,766.70 plus attorney’s fees and costs. Fitzgibbons appeals. We affirm.

On August 4, 2008, the Montgomery County grand jury charged the defendant, Lejeanra E. Polk and a co-defendant, Nicole T. Davis, with one count of premeditated first degree murder, see T.C.A. § 39-13-202(a)(1) (1991 and Supp. 1995), and one count of first degree felony murder, see id. § 39-13-202(a)(2), for the November 1995 stabbing death of Carolyn Vega-Velasquez. Following a bench trial, the defendant was convicted of second degree murder and felony murder. At sentencing, the trial court merged the second degree murder conviction into the felony murder conviction and imposed a life sentence by operation of law. See id. § 39-13-208(c). The defendant challenges the sufficiency of the evidence on appeal. Discerning no infirmity in the evidence, we affirm the judgment of the trial court.

The defendant, Brandon Ryan Weston, pleaded guilty to two counts of burglary of an automobile, Class E felonies, and to two counts of theft of property over $1,000, Class D felonies. The trial court sentenced the defendant as a Range I, standard offender, to an effective sentence of two years and one day in the Tennessee Department of Correction. The trial court ordered the defendant to serve his sentences consecutively to his sentences in case number 08CR365 and Hamblen County case number 08CR437. The trial court also revoked the defendant’s probation in case numbers 08CR365 and 08CR437. On appeal, the defendant argues that the trial court erred by denying alternative sentencing. Following our review, we affirm the judgments of the trial court.

This is an appeal from an administrative decision against Appellant, a licensed veterinarian. Appellee Board of Veterinary Medical Examiners sanctioned Appellant for improperly prescribing medications to farms. Appellant appeals. Discerning no error, we affirm.
 

The Petitioner, Dolwin D. Cormia, filed a petition for writ of error coram nobis alleging that newly discovered evidence—a Naval document diagnosing the Petitioner with “antisocial personality disorder”—mandated a new trial. The Hamilton County Criminal Court summarily dismissed the petition concluding that the Petitioner did not state a cognizable claim for coram nobis relief. For the first time on appeal, the Petitioner alleges that the coram nobis judge erred by not sua sponte recusing himself based upon the fact that the coram nobis judge “was possibly an Assistant District Attorney and/or the Executive District Attorney” at the time his case was being prosecuted. Following a review of the record, we conclude that the Petitioner has failed to allege the existence of subsequently or newly discovered evidence that would warrant relief under a writ of error coram nobis. We also find that the Petitioner has failed to support his claim of recusal with sufficient documentation to require reversal. The order of summary dismissal is affirmed.

This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No. W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of the United States Supreme Court’s decision in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131, 179 L. Ed.2d 75 (2011). Our conclusion, in Lake, that Appellants’ claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is not disturbed by the Williamson decision because the basis of our holding involved more than preservation of the manufacturers’ ability to choose under the safety regulations. Under the law of the case doctrine, and because further review would exceed the scope of the Tennessee Supreme Court’s mandate, we decline to revisit our decision concerning the perimeter seating issue. Reversed and Remanded.

Appellant failed to timely file his Notice of Appeal.  Thus, we dismiss this appeal for lack of jurisdiction.

The Defendant, Tiffany Nicole Nance, pled guilty to theft of property valued under $500, with an agreed sentence of eleven months and twenty-nine days to be served on probation. A probation violation warrant was issued, and, after a hearing, the trial court revoked the Defendant’s probation, finding that she had violated the terms of her probation. The court ordered her to serve sixty days of her sentence in confinement, followed by a reinstatement of her probation. On appeal, the Defendant contends the evidence is insufficient to sustain the trial court’s revocation of her probation. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

The Defendant, Roy A. Jamison, Jr., pled guilty to possession with the intent to deliver .5 grams or more of cocaine, a Class B felony, with a possible sentence range of eight to twelve years. The trial court sentenced the Defendant to ten years and ordered the Defendant to serve the first year of his sentence in the Tennessee Department of Correction and the balance in the Community Corrections Program. On appeal, the Defendant contends the trial court erred when it: (1) used the Defendant’s criminal history to enhance his sentence; and (2) sentenced him to confinement. After a thorough review of the record and relevant authorities, we conclude the trial court properly sentenced the Defendant. Accordingly, we affirm the trial court’s judgment.

In 1994, the Petitioner, Terrence G. Motley, pursuant to a plea agreement, pled guilty to aggravated assault and aggravated burglary and was sentenced to three years in the Shelby County workhouse for each crime, with the sentences to be served concurrently. In 2010, the Petitioner filed “A Motion In The Nature of Writ Of Error Coram Nobis,” which the trial court dismissed without a hearing. The trial court held that the Petitioner’s claim was timebarred and that coram nobis relief was not applicable to the Petitioner’s claim. After a thorough review of the record, the briefs, and relevant authorities, we affirm the trial court’s judgment.

The Polk County Grand Jury indicted Appellant, Davis Bradley Waldroup, Jr.,for two counts of especially aggravated kidnapping, one count of first degree murder, and one count of attempted first degree murder. These charges stemmed from an altercation Appellant had with his wife and her best friend at his trailer on Kimsey  Mountain. A jury convicted Appellant of one count each of aggravated kidnapping, especially aggravated kidnapping, voluntary manslaughter, and attempted second degree murder. The trial court sentenced Appellant to an effective sentence of thirty-two years. On appeal, Appellant argues that the evidence was insufficient to support his conviction of aggravated kidnapping, that the trial court erred in denying his motion for change of venue, erred in allowing the introduction into evidence of a photograph of one of the victim’s injuries, and erred in denying his motion for judgment of acquittal. After a thorough review of the record on appeal, we affirm the judgments of the trial court.

In this post-divorce change of custody case, Elizabeth A. (Hayes) (Falin) Finch (“Mother”) and Timothy A. Hayes (“Father”) sought to modify their parenting plan regarding their daughter (“the Child”), who was born on July 13, 2000. At the time of the divorce, the parties designated Mother as the primary residential parent and provided Father with regularly scheduled visitation. Following a hearing in response to the parties’ motions for modification, the court designated Father as the primary residential parent and awarded Mother co-parenting time. Mother appeals. We affirm the decision of the trial court.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. The employee was operating a torque gun which jerked and twisted her right hand while at work. She contended that her injury extended into her arm. Her employer agreed the injury was compensable but argued that the injury was limited to her index finger. The trial court found the injury was to the arm and awarded 70% permanent partial disability to that member. On appeal, her employer argues that the trial court erred by apportioning the award to the arm, that the amount of the award is excessive, and that the trial court erred by awarding certain discretionary costs. We affirm the judgment.

The mother of two minor children appeals the termination of her parental rights. She contends the evidence did not clearly and convincingly establish a statutory ground supporting termination of her rights or that termination was in the children’s best interests. We have determined that the evidence clearly and convincingly supports the trial court’s findings and, thus, affirm the trial court in all respects.