APPELLATE COURT OPINIONS

Petitioner, Derron Guy, pled guilty to carjacking, employment of a firearm during the commission of a dangerous felony, and aggravated robbery in case number 10-00740; carjacking and employment of a firearm during a dangerous felony in case number 09-06692; and criminal attempt of carjacking and possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony in case number 10-00741. Petitioner filed a petition for habeas corpus relief. The dismissal of the petition was affirmed on appeal. See Derron S. Guy v. Cherry Lindamood, Warden, No. W2012-00759-CCA-R3-HC, 2012 WL 5943396, at *1 (Tenn. Crim. App., at Jackson, Nov. 28, 2012). Petitioner sought leave in a different court to amend the first petition and raised additional grounds for habeas corpus relief. The habeas corpus court summarily dismissed the petition. Petitioner appeals. After a review, we determine that Petitioner is not entitled to habeas corpus relief as he has not proven on the face of the judgment or the record that the convicting court was without jurisdiction to convict or sentence Petitioner or that Petitioner is still imprisoned despite the expiration of his sentence. Accordingly, we affirm the judgment of the habeas corpus court.
 

In this premises liability action, Plaintiff/Appellant was allegedly injured when he slipped and fell on the subject property. The trial court granted a directed verdict to the Appellees, who are the property owners/occupiers. The basis for the directed verdict was that Appellant failed to submit evidence from which a reasonable juror could conclude either that the Appellees knew or should have known of a dangerous condition on the property, or that Appellees caused or created a dangerous condition on the property. Discerning no error, we affirm.

Mother appeals the termination of her parental rights as to her two children. Father’s rights were also terminated, but he does not appeal. The court found the Department of Children’s Services established three grounds fortermination of mother’s parental rights:1) severe child abuse pursuant to Tennessee Code Annotated § 36-1-113(g)(4); 2) mental incompetence pursuant to Tennessee Code Annotated § 36-1-113(g)(8)(B);and 3) persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3). In a previous dependency and neglect proceeding, the Lincoln County Juvenile Court found that Mother committed severe child abuse by failing to protect her minor daughter from sexual abuse by a neighbor. That judgment was not appealed; as a consequence, the severe abuse findings are res judicata. Pursuant to Tennessee Code Annotated § 36-1-113(g)(4), a court may terminate parental rights when the parent was found to have committed severe child abuse under any prior order of a court. The court also found that the Department had proven two additional grounds, mental incompetence and persistent conditions. The juvenile court also found that termination of both parents’ rights was in the children’s best interest. We therefore affirm.

The trial court vacated an arbitration award in favor of Respondent/Appellant on the ground of evident partiality on the part of two arbitrators and remanded the matter to the arbitration board to be re-arbitrated by a different panel. We reverse and remand to the trial court for confirmation of the arbitration award.

In this procedurally complex case, a Davidson County jury convicted the Defendant, Arthur Ray Turner, of especially aggravated kidnapping, aggravated robbery, four counts of aggravated rape, and attempted aggravated rape. The trial court sentenced the Defendant to a total effective sentence of seventy years in confinement. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion to suppress his statements to police; (2) the trial court erred when it denied his motion to dismiss based upon the State’s destruction of evidence; (3) the trial court erred when it ruled on the admissibility of DNA evidence; (4) the evidence is insufficient to sustain his conviction for two counts of aggravated rape because the State did not prove that he was armed with a weapon or anything the victim reasonably believed was a weapon; (5) the trial court erred when it allowed separate convictions for aggravated rape in Counts 3 and 4 and attempted aggravated rape in Count 5 because separate convictions violate his protections against double jeopardy; (6) the trial court erred when it ordered his sentences to run consecutively and when it ordered him to serve his sentence for especially aggravated kidnapping at 100 percent. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments in all respects save one. The trial court’s judgment in Count 1, especially aggravated kidnapping, should be modified to reflect a release eligibility date of 30 percent.
 

A Cheatham County jury convicted the Defendant, Aaron D. Ostine, of first degree premeditated murder, first degree felony murder, and aggravated robbery. The trial court merged the two murder convictions and imposed a life sentence. The court then sentenced the Defendant to 00twelve years for the aggravated robbery conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions; (2) the trial court erred when it denied a motion to suppress his statements to police; and (3) the State engaged in prosecutorial misconduct during closing argument. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.
 

This post-divorce case involves the application of Supreme Court Rule 40A, which governs the appointment, role and duties of a guardian ad litem. The guardian ad litem in this case, Janice Russell, was appointed on November 7, 2008. She filed a motion requesting the court to hold her ward’s father, appellant Scott D. Paterson (“father”), in contempt. After father filed a response pointing out that Rule 40A, § 9(a)(4) did not authorize a guardian ad litem to file a contempt motion, the trial court, in response, entered an order on March 17, 2010, appointing Ms. Russell “attorney ad litem.” Subsequently, Rule 40A, § 9 was amended to allow a guardian ad litem to “take any action that may be taken by an attorney representing a party pursuant to the Rules of Civil Procedure.” After the amendment took effect, Russell referred to herself in her filings as “guardian ad litem.” The trial court followed suit in its final order. On January 20, 2011, the trial court entered an order that disposed of all matters relating to custody of the child. More than a year later, father filed a petition to modify his child support. On May 16, 2013, the guardian ad litem filed a “motion for emergency hearing and motion for contempt.” On May 20, 2013, the trial court conducted a hearing, after which it entered an order holding father in contempt on four counts, sentencing him to 40 days in jail, suspending all of his parenting time, and reducing contact with his daughter to one telephone call per week. Father appeals. We hold that, pursuant to Supreme Court Rule 40A, § 5, the guardian ad litem’s appointment terminated when, with the passage of time, the court’s order disposing of the custody matters became final. Hence, the guardian ad litem had no authority to file her motion for “emergency hearing” and for contempt. We reverse the judgment of the trial court.

This is a dependency and neglect case. R.P. (“Mother”) appeals the trial court’s finding that he severely abused her minor daughter, K.P. The Department of Children’s Services petitioned the juvenile court to declare K.P. and her sister, K.J. (collectively, “the Children”) dependent and neglected. Following a hearing, the juvenile court found 1 that the Children were dependent and neglected in the care of Mother and her then-boyfriend, B.J.2 The juvenile court further found that B.J. committed severe abuse against K.P.,3 but that Mother did not. DCS appealed to the trial court. Following an adjudicatory hearing, the trial court found, by clear and convincing evidence, (1) that the Children were dependent and neglected and (2) that Mother committed severe child abuse against K.P. in that she failed to protect K.P. from abuse at the hands of B.J. Mother appeals. We affirm.

Because the order appealed is not a final judgment, this Court lacks jurisdiction to hear this matter. Thus, the appeal is dismissed.

In this post-divorce case, the trial court entered an order on March 12, 2012, incorporating a permanent parenting plan. The order states that “[t]his matter shall be reviewed in one year.” On April 18, 2013, the court entered an order stating that “the Court, sua sponte, finds that the Permanent Parenting Plan attached to the Order of [March 12, 2012], should in fact be a Temporary Parenting Plan and by this Order [the court] corrects such.” We hold that under Tenn. Code Ann. § 36-6-404(a) (2010), which provides that “[a]ny final decree or decree of modification in an action for absolute divorce . . . involving a minor child shall incorporate a permanent parenting plan,” the parenting plan incorporated by the trial court’s March 12, 2012 order was a permanent plan. Because of the mandatory statutory language, the trial court was without authority to subsequently “convert” it to a temporary parenting plan. Consequently, we reverse the judgment of the trial court.

This appeal involves the termination of a father’s parental rights on numerous grounds. We affirm the trial court’s finding that grounds for termination exist, due to incarceration under a ten year sentence, severe child abuse, persistent conditions, and abandonment by an incarcerated parent, and we affirm the trial court’s finding that termination is in the child’s best interest. We vacate the trial court’s finding of willful failure to pay child support but otherwise affirm the order as modified.

A.L. (“Mother”) appeals the termination of her rights with respect to her five minor children (collectively, when referring to all five, “the Children”). The Department of Children’s Services (“DCS”) placed the Children in temporary state custody based on the youngest child’s exposure to methamphetamine in utero. The court found that Mother’s conduct constituted severe abuse against that child; consequently, the court relieved DCS of its obligation to make reasonable efforts toward reunification of the Children with Mother. Some 17 months after the Children were placed in foster care, DCS initiated these termination proceedings. After a bench trial, the court terminated Mother’s rights based on its finding of multiple grounds for termination and its further finding that termination is in the best interest of the Children. Both findings were said by the trial 1 court to be made by clear and convincing evidence. Mother appeals. We affirm.

This case presents issues regarding the interpretation and enforceability of an agreed order entered into between the parties before the Gatlinburg Board of Appeals and Adjustments (the “Board”). Defendant, Stuart H. Kaplow, leases certain real property improved with rental units from defendant, Maury R. Greenstein, which property is located within the City of Gatlinburg. The City of Gatlinburg (the “City”), through its building official, issued notices of condemnation to the defendants regarding certain units on this property and informed the defendants that the units would be demolished if repairs were not made. The defendants appealed to the Board. During those proceedings, the parties entered into an agreement with respect to the property and memorialized this agreement in the form of a written order, which was signed by the defendants and their counsel. A few months later, the City filed the instant action, seeking a declaration that (1) the defendants’ further attempts to appeal to the Board were void and ineffectual pursuant to the terms of the agreed order and (2) the defendants had materially breached the agreed order such that the City had no obligation to issue building permits. Following a bench trial, the trial court found that the defendants had materially breached the terms of the agreed order. The court also found that the defendants had forfeited their right to further appeal to the Board. The court therefore ruled that the City could demolish the condemned units and impose a lien against the real property for the demolition and cleaning costs. Defendants have appealed. Discerning no error, we affirm.

Plaintiff in action to recover for negligence, professional negligence, breach of duty, constructive fraud, constructive breach of contract, and inducement of failure to perform a lawful contract, appeals dismissal of various parties and claims; plaintiff also appeals a portion of the jury instructions, the jury’s verdict awarding him $474.00, and the denial of his motion for a new trial. We affirm the trial court’s judgment.

Appellant, David Michael Blevins, was convicted by a Sullivan County jury of three counts of aggravated sexual battery as lesser-included offenses of the indicted charges, rape of a child. Following a sentencing hearing, the trial court imposed three consecutive sentences of ten years each. Appellant raises three issues in this appeal: (1) whether aggravated sexual battery is a lesser-included offense of rape of a child; (2) sufficiency of the convicting evidence; and (3) challenges to the length and alignment of his sentences. Following our review, we affirm the judgments of the trial court.

The parties to this action were divorced in Shelby County, Tennessee in 2002. The parties had one child together during the marriage. Pursuant to the original parenting plan, Mother had primary custody of the child. Father remarried and moved to Arkansas in 2003. In 2003, Father brought an action in the trial court charging Mother with contempt and petitioning the court to award him custody of the child. The trial court granted Father’s petition, and the child moved to Arkansas to live with Father. In 2012, Father was granted permission by the court to relocate to Texas with the child. In 2013, Mother brought this action in the trial court charging Father with contempt and petitioning the court to award her custody of the child once again. The trial court dismissed Mother’s petitions, ruling that Tennessee no longer had exclusive, continuing jurisdiction over custody issues related to the child. On appeal, we affirm the trial court’s ruling.

Griffith Services Drilling, LLC (“Griffith”) and Lexington Insurance Company, Griffith’s insurance company, sued Arrow Gas & Oil, Inc. (“Arrow”) for property damage caused by a fire that occurred while Arrow was refueling a drilling rig operated by Griffith in Anderson County, Tennessee (“the Drilling Site”). Arrow answered the complaint and counterclaimed for breach of contract based upon Griffith’s refusal to pay for the fuel delivered by Arrow on the day of the fire. Arrow also filed a motion to dismiss for spoliation, which the Circuit Court for Anderson County (“the Trial Court”) granted dismissing Griffith’s claims against Arrow. Arrow then filed a motion for summary judgment on its counterclaim, which the Trial Court granted in part. Griffith appeals to this Court raising issues regarding the dismissal of their claims and the grant of summary judgment to Arrow. We find and hold that both Griffith and Arrow were guilty of spoliation, and, therefore, that dismissal of Griffith’s claims was not an appropriate sanction. We vacate the dismissal of Griffith’s claims against Arrow and reinstate them. Because the Trial Court granted Arrow summary judgment based upon its decision on the issue of spoliation, and we have vacated the Trial Court’s decision on the issue of spoliation, we also vacate the grant of summary judgment to Arrow.

This appeal presents the issue of whether the City of Townsend (“the City”) properly issued a citation for trespass to the defendant, Anthony Damico, when he exited the Little River onto private property in order to avoid crossing a dam on his inner tube. The Townsend Municipal Court upheld the citation and issued Mr. Damico a fine. Mr. Damico appealed to the Blount County Circuit Court for a trial de novo. The circuit court held that Mr. Damico had a right to portage around the dam and that he was denied this right when he was confronted by an agent of the private property owner. The circuit court further held that Mr. Damico did not engage in trespass when he traversed private property because he was seeking to avoid further confrontation, which the court found constituted justifiable cause. Therefore, the circuit court dismissed the citation. The City of Townsend appeals. We reverse and remand for reinstatement of the trespassing citation and fine.

This appeal concerns numerous post-divorce issues. Donald Lester Benedict (“Husband”) filed a petition to modify his child support obligation against his former wife Gretchen Michelle Benedict (“Wife”) in the Chancery Court for Hamilton County (“the Trial Court”). The parties eventually raised a host of issues about money, which were referred to a Special Master. Wife objected to certain of the Master’s findings. Ultimately, the Trial Court sustained certain of Wife’s objections to the Master’s report and denied others. The Trial Court found, inter alia, that Husband was willfully or voluntarily underemployed. Husband appeals, and both parties raise several issues. We reverse the Trial Court as to its finding that Husband is willfully or voluntarily underemployed and those issues related to this finding. We remand for the Trial Court to make new determinations on these issues in light of our holdings that Husband was not willfully or voluntarily underemployed, and that Husband’s income for purposes of child support is $75,000 per year as found by the Master. Otherwise, we affirm the judgment of the Trial Court.

Randall Scott McCoy (“the Defendant”) pleaded guilty to one count of sexual exploitation of a minor, a Class B felony, and was sentenced to eight years’ incarceration. The Defendant reserved a certified question of law concerning the trial court’s denial of his motion to suppress evidence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgment.

The respondent financial services company appeals the trial court’s entry of an order approving a transfer of the payee’s structured settlement payment rights to the petitioner financial services company and its assignee, pursuant to Tennessee’s Structured Settlement Protection Act (“SPPA”). See Tenn. Code Ann. §§ 47-18-2601 to 2607 (2013). The trial court found that the transfer at issue met all statutory requirements. On appeal, the respondent company raises the issue of whether the transfer order contravened two prior court orders partially transferring the payee’s structured settlement payment rights to the respondent and if so, whether this contravened applicable law under the SSPA. Discerning no error, we affirm.

The plaintiff took his bass fishing boat to defendant’s business for it to repair a “rodbox lid” that did not fit properly. While the boat was there, defendant replaced the lid. Subsequently, plaintiff went to the defendant’s store and got in the boat, which was on a trailer in the parking lot, in order to examine the new lid. While attempting to exit the boat, plaintiff caught his foot on something, tripped, and fell out of the boat. Plaintiff’s theory was that an employee of the defendant had negligently left the old rodbox lid inside the boat and that plaintiff tripped over the old lid. At the close of plaintiff’s proof, defendant moved for a directed verdict, arguing that plaintiff failed to prove breach of duty because, according to defendant, he offered no evidence of the object that caused his fall; and defendant could not, as a matter of law, be liable because plaintiff was at least 50% at fault for his injuries. The trial court directed a verdict for defendant. We hold that plaintiff presented sufficient proof that the old lid caused him to trip and fall, and that a reasonable trier of fact could conclude that the employee had negligently caused plaintiff’s injury. We further hold that the question of comparative fault is properly for the jury to decide under the proof presented at this trial. We therefore vacate the directed verdict and remand for further proceedings.

This case involves the difficult issue of disestablishment of paternity and its effect on child support arrears. Over a year after the trial court entered an order requiring the respondent to pay child support, he requested Rule 60 relief on the grounds that he was not the biological father of the child. Based upon the statutory prohibition against the retroactive modification of child support and the related caselaw, we must affirm the trial court’s decision denying the respondent Rule 60 relief for any time period prior to the filing of his petition.

The petitioner, Rodricko O. Thomas, filed a petition for habeas corpus relief in the Lauderdale County Circuit Court. The habeas corpus court summarily dismissed the petition for failure to state a basis on which relief could be granted. On appeal, the petitioner challenges the dismissal, contending that the habeas corpus court should have appointed counsel and held a hearing. Upon review, we affirm the judgment of the habeas corpus court.

The defendant, Michael Wilder, was convicted by a Madison County Circuit Court jury of robbery, a Class C felony, and sentenced by the trial court as a Range III, persistent offender to fourteen years in the Department of Correction. He raises three issues on appeal: (1) whether the trial court erred in denying his motion to suppress his statement to police; (2) whether the evidence is sufficient to sustain his conviction; and (3) whether the trial court imposed an excessive sentence by misapplying enhancement and mitigating factors and erroneously classifying him as a persistent offender. Following our review, we affirm the judgment of the trial court.