APPELLATE COURT OPINIONS

This is a declaratory judgment action wherein one insurance company, which provided general liability insurance coverage to the insured, asserts that another insurance company, which provided the same insured with automobile insurance coverage, had the primary duty to pay the cost of defending and to indemnify the insured in a third-party tort action filed pursuant to Tennessee Code Annotated § 50-6-112. The plaintiff insurer asserts that the defendant insurer had the primary duty to provide and pay the cost of the defense in that action and to indemnify the insured pursuant to its automobile insurance policy because an additional insured was operating a “boom truck” owned by the insured that was listed under the defendant’s auto policy when the injury to the third-party plaintiff occurred.Both insurers filed motions for summary judgment.The trial court denied the plaintiff’s motion and granted summary judgment to the defendant insurer holding that the plaintiff, not the defendant, is liable for providing and paying the cost of the defense and for indemnifying the insured in the third-party tort action. We affirm.

A bank filed a complaint against husband and wife to recoup money owed on a credit agreement after a foreclosure sale failed to produce sufficient funds to repay the loan in full. The trial court entered a judgment against the couple, and the couple appealed. We reverse the trial court’s judgment because the bank relied on two different versions of a credit agreement, thereby failing to prove the existence of an enforceable contract with definite terms.

This case involves the issue of retroactive child support and whether the trial court appropriately denied Wife’s request. Husband’s divorce petition was pending for more than three years before Wife answered. During that time the parties were separated, and Husband made monthly car payments on Wife’s vehicle in an amount that exceeded what would have been his child support obligation. We conclude that Husband satisfied his child support obligations based on the unique facts of this case and affirm the trial court’s judgment.

This appeal involves a post-divorce dispute over whether the parties’ MDA required the payment of alimony in futuro or alimony in solido. The Wife remarried shortly after the parties’ divorce, and the Husband filed a motion to terminate his alimony obligation, claiming that the obligation was for alimony in futuro, which automatically terminates upon remarriage. The trial court concluded that the obligation was for alimony in futuro, and therefore, the court granted the Husband’s motion to terminate his alimony obligation. Wife appeals. We reverse and remand for further proceedings.

The father in this termination of parental rights case, who was incarcerated at all times material to this case at Riverbend Maximum Security Prison and is indigent, appeals the termination of his rights contending he was denied due process because he was not informed of his rights as required under Tennessee Code Annotated § 36-1-113(f), he did not sign a waiver of his rights, and he was not provided a court-appointed attorney. The father, who did not file a responsive pleading to the petition, contends, inter alia, that the trial court failed to comply with Tennessee Code Annotated § 36-1-113(f), which mandates that he be informed that he has the right to participate and contest the allegations and, if he wished to contest the petition, that a court-appointed attorney would be provided to assist in contesting the petition. The record does not contain a signed waiver by the father nor does it reflect that the juvenile court made the requisite determination that he was informed of his rights and, after being informed, voluntarily waived his right to a court-appointed attorney to assist in contesting the petition, or that, if he did not participate after being informed of his rights, the court may proceed with such action without the parent’s participation as set forth in Tennessee Code Annotated § 36-1-113(f)(5). We, therefore, vacate the judgment of the juvenile court as it pertains to the father’s parental rights and remand with instructions for the juvenile court to comply with Tennessee Code Annotated § 36-1-113(f) and, if the father wishes to contest the petition, that a court-appointed attorney be provided and the case set for a new trial once his attorney has had a reasonable opportunity to prepare.
 

Plaintiff filed this action against the instructor of a motorcycle safety course and his employer for injuries she sustained when she drove off of the designated course site and collided with a parked pickup truck.The trial court found that the plaintiff’s negligence claims were barred because she signed a valid written waiver/release from liability document prior to starting the course. The trial court also dismissed the plaintiff’s gross negligence claims, finding there was nothing in the record which would allow a reasonable juror to conclude the defendant exercised a conscious neglect of duty or a callous indifference to consequences. We affirm.

The Petitioner, Sterling Lamar Cooper, appeals the Anderson County Criminal Court’s denial of post-conviction relief from his guilty plea convictions for possession with the intent to deliver a controlled substance less than 0.5 grams, a Class C felony, and possession with the intent to deliver a controlled substance more than 0.5 grams, a Class B felony, and his concurrent sentences of ten years and twenty years, respectively. On appeal, the Petitioner contends that the convictions should be vacated and the charges dismissed because (1) his sentences were illegal, (2) the trial court committed judicial misconduct, (3) the State committed prosecutorial misconduct, and (4) trial counsel provided ineffective assistance of counsel. We affirm the judgement of the trial court.

Appellant, Elder Mark Anthony Thornton,was convicted in Davidson County General Sessions Court of eighty counts of criminal contempt after violating an order of protection. He appealed those convictions to the Davidson County Criminal Court and, following a bench trial, was found guilty of criminal contempt for 180 separate violations of the order of protection. Appellant was pro se at trial. The trial court sentenced Appellant to ten calendar days per incident consecutively, for a total of 1800 days of incarceration. Appellant, still proceeding pro se, filed a timely notice of appeal. After a review of the original and the supplemented record, we determine that ten of the convictions and sentences are proper and, thus, are affirmed. However, the balance of the convictions, 170 in total, which were not listed in the charging notice can not stand, as proper notice was not given to Appellant. As such, those convictions are reversed, and the resulting sentences are vacated.

Former administrator of decedent’s estate appeals order denying his Tenn. R. Civ. P. 60.02 motion, which sought relief from an order requiring him to reimburse the estate for fees incurred by the successor administrator. Finding no error, we affirm.
 

I respectfully dissent. Specifically, I disagree with the majority’s conclusions that in Miller I this court reversed the conviction solely “because of the manner in which the trial court admonished Blackwell [the unavailable witness] in front of the jury, [Blackwell’s] explanation that her improved memory resulted from the threat of jail, and her testimony that she had been assaulted after she spoke with the TBI together with her attribution of the assault to her involvement in the case.”

Dwight Miller (“the Defendant”) was convicted by a jury of first degree premeditated murder and sentenced to life in prison. The Defendant sought post-conviction relief and, after a hearing, the post-conviction court granted relief in the form of a delayed appeal. We now address two issues in the delayed appeal: (1) whether the trial court erred in refusing to grant a mistrial after a bomb threat; and (2) whether the trial court erred in allowing the prior testimony of an unavailable witness to be read into the record. After a thorough review of the record, we have determined that the Defendant is not entitled to relief on either of these issues. Accordingly, we affirm the Defendant’s judgment of conviction.

The petitioner, Willie A. Cole, appeals the denial of his petition for post-conviction relief. In this case, the petitioner was convicted of first degree murder and tampering with evidence conviction. He was sentenced as a repeat violent offender to a term of life without the possibility of parole for the murder conviction and to six years for the tampering with evidence. On appeal, he contends that the denial of his petition was error because the evidence established that he was denied his right to the effective assistance of counsel. Following review of the record, we find no error in the denial and affirm the decision of the post-conviction court.

The petitioner, Michael A. Virga, appeals from the post-conviction court’s denial of his petition for post-conviction relief from his first degree felony murder and aggravated arson convictions. On appeal, he argues that he received the ineffective assistance of counsel and that he was denied the right to trial by a fair and impartial jury. After review, we affirm the denial of post-conviction relief.

The defendant, Jeffrey Leo Rochelle, was indicted for first degree premeditated murder and was convicted by a jury of the lesser included offense of voluntary manslaughter, a Class C felony. On appeal, the defendant alleges the evidence was insufficient to support his conviction and that the trial court should have granted a mistrial when a witness testified regarding the defendant’s anger management issues. After a careful review of the record, we conclude there was no error and affirm the judgment of the trial court.

The Defendant, Anthony S. Harding, was convicted by a Sumner County jury of six counts of aggravated statutory rape and one count of attempted aggravated statutory rape. The trial court later dismissed the attempt conviction. Following a sentencing hearing, the trial court ordered the Defendant to serve four years on each count of aggravated statutory rape, with all of these counts to run consecutively, resulting in an effective twenty-four-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the indictment was insufficient for failing to provide specific dates for the offenses; (2) whether the evidence was sufficient to sustain the convictions; (3) whether the trial court erred by excluding testimony from an alibi witness; and (4) whether the trial court imposed an excessive sentence. Following our review, the Defendant’s convictions and sentences for aggravated statutory rape are affirmed. We remand solely for the entry of corrected judgment forms to reflect dismissal of Count Seven, the attempt conviction.

The defendant, Christopher Lance Osteen, was convicted of burglary, reckless aggravated assault, unlawful possession of a weapon, evading arrest, and resisting arrest and was sentenced by the trial court as a Range II offender to an effective term of sixteen years, eleven months, and twenty-nine days. On appeal, he challenges the trial court’s enhancement of his sentences by the use of prior convictions that were listed in his presentence report but not included in the State’s notice of enhanced punishment. Following our review, we affirm the sentencing determinations of the trial court.

While I agree with the majority opinion in this case, I write separately to say that I view the question of whether to affirm the trial court’s decision to be a much closer question than is indicated by the majority opinion. I concur only because of the high standard of appellate review of the trial court’s decision.
 

This appeal arises from a divorce action in which the trial court named Mother the primary residential parent and entered a permanent parenting plan limiting Father’s parenting time to one hundred and eight (108) days a year. Father appeals. We affirm.
 

Upon the parties’ divorce, Mother was named the children’s primary residential parent. Years later, Mother petitioned to increase Father’s child support, and Father filed a countercomplaint seeking to be named the primary residential parent. The trial court found that a material change in circumstances had occurred since the entryof the parties’ parenting plan. The trial court further found that certain best interest factors weighed in favor of,and against, both parties; however, it determined that the children’s best interests would be served by Mother remaining the primary residential parent. Father appeals and, discerning no error, we affirm.
 

The appellant, a juvenile, appealed the juvenile court’s revocation of his probation and commitment to the custody of the Department of Children’s Services. The trial court, upon the juvenile’s timely appeal, affirmed the ruling of the juvenile court. We affirm.

Petitioner, Anthony Bond, appeals from the post-conviction court’s denial of his petition for post-conviction relief following an evidentiary hearing. Following a second jury trial after his first conviction was reversed and he was granted a new trial, Petitioner was again convicted for first degree murder. This court affirmed his conviction on direct appeal. Petitioner filed a timely petition for post-conviction relief in which he alleged that his trial counsel was ineffective for failing to call an expert witness to challenge the State’s medical expert’s testimony regarding the victim’s cause of death. After a careful review of the record before us, we affirm the judgment of the post-conviction court.

This appeal raises the question of whether a prisoner facing the death penalty has the mental capacity to abandon the pursuit of post-conviction relief in his three murder cases. After the prisoner decided not to seek a new trial in any of these cases, one of his sisters, in cooperation with the Office of the Post-Conviction Defender, filed a “next friend” petition in each of the prisoner’s three murder cases, requesting the courts to declare the prisoner incompetent, thereby enabling her to pursue post-conviction relief on his behalf. The Criminal Court for Davidson County and the Circuit Court for Montgomery County conducted separate hearings in 2008. Each court denied the petitions after determining that the prisoner’s sister and the Office of the Post-Conviction Defender had failed to establish by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. The Court of Criminal Appeals affirmed both of these judgments. Reid v. State, Nos. M2009-00128-CCA-R3-PD, M200900360-CCA-R3-PD, M2009-01557-CCA-R3-PD, 2011 WL 3444171 (Tenn. Crim. App. Aug. 8, 2011). We granted the prisoner’s Tenn. R. App. P. 11 application. We have determined that both trial courts employed the correct legal standard for determining whether the prisoner possessed the mental capacity to rationally forego seeking post-conviction relief and also that the prisoner’s sister and the Office of the Post-Conviction Defender failed to prove by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. For the sake of consistency, we further hold that, in all future cases, Tennessee’s courts should employ the mental competency standard of Tenn. Sup. Ct. R. 28, § 11(B) whenever the issue of a prisoner’s competency to pursue post-conviction relief is properly raised.
 

This appeal raises the question of whether a prisoner facing the death penalty has the mental capacity to abandon the pursuit of post-conviction relief in his three murder cases. After the prisoner decided not to seek a new trial in any of these cases, one of his sisters, in cooperation with the Office of the Post-Conviction Defender, filed a “next friend” petition in each of the prisoner’s three murder cases, requesting the courts to declare the prisoner incompetent, thereby enabling her to pursue post-conviction relief on his behalf. The Criminal Court for Davidson County and the Circuit Court for Montgomery County conducted separate hearings in 2008. Each court denied the petitions after determining that the prisoner’s sister and the Office of the Post-Conviction Defender had failed to establish by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. The Court of Criminal Appeals affirmed both of these judgments. Reid v. State, Nos. M2009-00128-CCA-R3-PD, M200900360-CCA-R3-PD, M2009-01557-CCA-R3-PD, 2011 WL 3444171 (Tenn. Crim. App. Aug. 8, 2011). We granted the prisoner’s Tenn. R. App. P. 11 application. We have determined that both trial courts employed the correct legal standard for determining whether the prisoner possessed the mental capacity to rationally forego seeking post-conviction relief and also that the prisoner’s sister and the Office of the Post-Conviction Defender failed to prove by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. For the sake of consistency, we further hold that, in all future cases, Tennessee’s courts should employ the mental competency standard of Tenn. Sup. Ct. R. 28, § 11(B) whenever the issue of a prisoner’s competency to pursue post-conviction relief is properly raised.

This appeal raises the question of whether a prisoner facing the death penalty has the mental capacity to abandon the pursuit of post-conviction relief in his three murder cases. After the prisoner decided not to seek a new trial in any of these cases, one of his sisters, in cooperation with the Office of the Post-Conviction Defender, filed a “next friend” petition in each of the prisoner’s three murder cases, requesting the courts to declare the prisoner incompetent, thereby enabling her to pursue post-conviction relief on his behalf. The Criminal Court for Davidson County and the Circuit Court for Montgomery County conducted separate hearings in 2008. Each court denied the petitions after determining that the prisoner’s sister and the Office of the Post-Conviction Defender had failed to establish by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. The Court of Criminal Appeals affirmed both of these judgments. Reid v. State, Nos. M2009-00128-CCA-R3-PD, M200900360-CCA-R3-PD, M2009-01557-CCA-R3-PD, 2011 WL 3444171 (Tenn. Crim. App. Aug. 8, 2011). We granted the prisoner’s Tenn. R. App. P. 11 application. We have determined that both trial courts employed the correct legal standard for determining whether the prisoner possessed the mental capacity to rationally forego seeking post-conviction relief and also that the prisoner’s sister and the Office of the Post-Conviction Defender failed to prove by clear and convincing evidence that the prisoner lacked the capacity to make rational decisions regarding the pursuit of post-conviction relief. For the sake of consistency, we further hold that, in all future cases, Tennessee’s courts should employ the mental competency standard of Tenn. Sup. Ct. R. 28, § 11(B) whenever the issue of a prisoner’s competency to pursue post-conviction relief is properly raised.
 

The Defendant, Eric Shavonn Sayers, submitted a best interest guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to criminal conspiracy to commit theft of property valued over $1000, a Class E felony, eleven counts of criminal simulation, Class E felonies, two counts of theft of property valued over $1000, Class D felonies, and driving without a license in his possession, a Class C misdemeanor. See T.C.A. §§ 39-12-103, 39-14-115, 39-14-103, 55-50-351 (2010). The parties agreed to an effective six-year sentence as a Range III, persistent offender with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court ordered the Defendant to serve his sentence in confinement. On appeal, the Petitioner contends that (1) the trial court failed to make the required factual findings to support the Defendant’s guilty pleas, (2) his convictions for criminal simulation and theft violate double jeopardy principles, and (3) the trial court erred by denying alternative sentencing. We affirm the judgments of the trial court.