APPELLATE COURT OPINIONS

Ronald W. Harvey, Jr., was involved in an automobile accident while driving a 1999 Dodge Caravan in the course of his employment with B&W Wholesalers. At the time of the accident, Mr. Harvey and his wife, Cindy Goodson Harvey (collectively “the Harveys”), had an automobile insurance policy with Farmers Insurance Exchange (“Insurance Company”) that listed the Caravan as the covered vehicle. However, the policy included an exclusion for any vehicle “[w]hile used in employment by any person whose primary duties are the delivery of products or services[.]” Insurance Company refused to defend the Harveys in a lawsuit regarding the accident, claiming that the exclusion applies. The Harveys sought a declaratory judgment that the accident was covered by the policy. After a bench trial, the court dismissed the case and declared that the exclusion applied. The Harveys appeal, arguing that “delivery of products or services” was not among Mr. Harvey’s “primary duties,” and that, in any event, Insurance Company should be estopped from denying coverage because it knew how Mr. Harvey intended to use the van and provided coverage anyway. We affirm.

The petitioner, Michael Lee, appeals the denial of his petition for post-conviction relief by the Circuit Court for Williamson County from his convictions for aggravated burglary and theft of property valued over $1000 for which he was sentenced to fifteen years and twelve years, respectively, to be served consecutively for a total of twenty-seven years. The petitioner claims the trial court erred in concluding he was provided the effective assistance of counsel. We affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. This is a suit to recover workers’ compensation death benefits. Employer denied that Decedent’s cardiac arrest was caused by his employment. The trial court found the death to be work-related, and awarded benefits to the survivors. On appeal, Employer contends that the evidence preponderates against that finding.  We disagree, and affirm the judgment.

This is a divorce case involving the interpretation of a Prenuptial Agreement. Husband/Appellant appeals the trial court’s decision to reimburse certain expenditures made by Wife as “improvements” to the marital home. Wife/Appellee appeals the trial court’s denial of her request for attorney’s fees. Finding no error, we affirm.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sustained a compensable injury. He subsequently developed a condition known as “winging” of the scapula.  Two treating doctors testified that the AMA Guides did not provide for assigning impairment for this condition. An evaluating physician agreed that the AMA Guides did not cover the condition, but assigned 10% permanent impairment to the body as a whole, based upon his experience and judgment. The trial court awarded 15% permanent partial disability to the body as a whole.  Employer has appealed, contending the evidence preponderates against the trial court’s finding. We affirm the judgment.

A Shelby County Criminal Court jury convicted the appellant, Fredrick Milan, of first degree premeditated murder and aggravated assault, and the trial court sentenced him to consecutive sentences of life and five years, respectively. On appeal, the appellant contends that (1) the trial court erred by consolidating the offenses; (2) the trial court improperly admitted the victim’s prior statement into evidence under the hearsay rule’s forfeiture by wrongdoing exception, Tennessee Rule of Evidence 804(b)(6); (3) the trial court erred by admitting into evidence the 9-1-1 tape of an eyewitness to the victim’s murder; (4) the trial court erred by admitting an autopsy photograph into evidence; (5) the evidence is insufficient to support the appellant’s murder conviction; and (6) the trial court erred by ordering consecutive sentencing and by assessing a five-hundred-dollar fine for the aggravated assault conviction. The State contends that the evidence is sufficient to support the murder conviction and that the trial court properly ordering consecutive sentencing. However, the State acknowledges that the trial court improperly fined the appellant. Regarding the appellant’s remaining issues, the State contends that the appellant waived them because he failed to include them in his motion for new trial and that he is not entitled to plain error relief. We conclude that the evidence is sufficient to support the murder conviction and that consecutive sentencing is proper in this case. Nevertheless, we also conclude that the trial court committed plain error as to the aggravated assault conviction by consolidating the appellant’s indictments for trial and that the trial court erred by imposing the appellant’s fine. Therefore, the appellant’s murder conviction is affirmed but his aggravated assault conviction and resulting fine are reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

The defendant, Mario Lester, was convicted of one count of burglary of a building (Class D felony) and was sentenced to twelve years as a career offender. On appeal, he argues that the evidence was insufficient to support the conviction and that the trial court erred in denying community corrections.  After careful review, we affirm the judgment from the trial court.

The defendant, Isedore Lamont Parks, was convicted of simple possession of cocaine, a Class A misdemeanor, and sentenced to eleven months, twenty-nine days in the county jail at seventy-five percent release eligibility, to be served consecutively to a prior sentence. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and report of findings of fact and conclusions of law. The trial court determined that: (1) under Building Materials Corp. v. Britt, Employee’s date of injury was his last day worked before having shoulder surgery, December 15, 2005; (2) Employee’s meaningful return to work was not frustrated by a plant-wide lay-off; and (3) Employee’s permanent partial disability award should be capped at 1.5 times the medical impairment rating. Because the evidence does not preponderate against the trial court’s findings, we affirm the trial court’s judgment.

We accepted this appeal to determine whether the post-conviction court erred in denying Petitioner Dennis Pylant’s claim of ineffective assistance of counsel at trial. In 2001, a jury convicted Petitioner of the first degree felony murder of two-year-old S.J.D. in the perpetration of aggravated child abuse. The Court of Criminal Appeals affirmed Petitioner’s conviction and this Court denied Petitioner’s application for permission to appeal. Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel at trial. At the hearing, Petitioner adduced testimony about self-incriminating statements made by the victim’s mother but which trial counsel did not present to the jury at trial. The post-conviction court struck this testimony as hearsay and denied Petitioner’s claim for relief. The Court of Criminal Appeals affirmed the post-conviction court. We hold that the post-conviction court erred in striking the proffered testimony as hearsay. We also hold that, because the post-conviction court made no credibility findings with respect to the proffered witnesses, we are unable to reach the merits of Petitioner’s claim. Accordingly, we reverse the Court of Criminal Appeals’ judgment in this case and remand for a new post-conviction hearing.

A Shelby County Criminal Court jury convicted the appellant, Starbrough Jones, of first degree felony murder, especially aggravated robbery, and attempted especially aggravated robbery, and the appellant received sentences of life, twenty-one years, and nine years, respectively. The trial court ordered that the appellant serve the twenty-one-year and nine-year sentences concurrently with each other but consecutively to the life sentence. On appeal, the appellant contends that (1) the trial court erred by allowing unreliable hearsay testimony into evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); (2) the evidence is insufficient to support the convictions; and (3) consecutive sentencing is excessive. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

This is an appeal from an order joining a third party in a divorce action. During the husband and wife’s marriage, husband’s mother gave the couple a substantial amount of money. The wife filed for a divorce in circuit court. Soon after, the husband’s mother filed a lawsuit in chancery court against the husband and wife, alleging breach of an agreement to repay the funds and to grant her a security interest in the marital home. Simultaneously, she filed a lien lis  pendens on the marital home. The marital home was sold, and the chancery court transferred the husband’s mother’s lien lis pendens to the proceeds of the sale. The husband allowed a default judgment to be taken against him in his mother’s chancery court lawsuit. Subsequently, the circuit court granted the wife’s motion to join the husband’s mother in the divorce proceedings as a necessary party. Thereafter, the chancery court case was transferred to the circuit court. The circuit court held a trial on the merits; it found no agreement by the wife to repay the monies given to the couple by the husband’s mother, and dismissed her claim against the wife. The husband’s mother was awarded damages against the husband for the full amount of the money loaned, to be paid out of his share of the proceeds from the sale of the marital home. The circuit court’s distribution of the martial estate, however, effectively eliminated his share of the proceeds. The husband’s mother appeals, arguing that she was improperly joined in the divorce action, and that the circuit court did not give proper effect to her lien lis pendens against the proceeds from the sale of the marital home. On appeal, we affirm, finding that the joinder was proper and finding no error in the application of the lien against the husband’s share of the proceeds.

This opinion involves two consolidated appeals. The first case involves post-divorce petitions to modify a parenting plan, filed by the husband and the wife, regarding custody of two children. The second case was filed by the wife and a third party, seeking to establish the third party’s parentage of one of the two children. For the following reasons, we affirm the trial court’s decision in the custody case as modified, and we affirm the trial court’s decision in the paternity case.

Jennifer McClain Swan (“Mother”) and Frank Edward Swan (“Father”) were divorced in March of 2006 in Knox County Chancery Court (“Chancery Court”). The parties have two minor children born of the marriage (“the Children”). In October of 2006, Mother obtained first an Ex Parte Order of Protection against Father and then a Bridging Ex Parte Order of Protection from the Fourth Circuit Court for Knox County (“Circuit Court”). Over the next few months, Mother filed multiple petitions for contempt alleging that Father had violated the Order of Protection. After a hearing, the Circuit Court entered an order finding and holding, inter alia, that Father had violated the Bridging Order of Protection a total of forty-four times, that Father would serve time in the Knox County Penal Farm, that Mother had a no-contact Order of Protection against Father for ten years, and that Mother would be allowed to relocate outside the state of Tennessee without having to reveal her address to Father. The Circuit Court also entered a modification of the Chancery Court’s Permanent Parenting Plan that, inter alia, named Mother the primary residential parent and provided that Father would have co-parenting time with the Children only upon the recommendation and approval of Father’s psychologist, the Children’s psychologist, the Guardian Ad Litem, and the Court. Father appeals to this Court. We vacate the Permanent Parenting Plan entered by the Circuit Court and affirm the remainder of the Order of Protection.

The Tennessee Department of Transportation ordered the removal of a long-existing billboard to permit the expansion of a highway right-of-way. The billboard’s owner removed the sign and reinstalled it on another part of its leasehold, within 30 feet of its original location. The Department refused to renew the permit for the sign or to issue a new permit because its new location did not comply with the requirements of The Billboard Regulation and Control Act of 1972. The owner challenged that decision at an administrative hearing, arguing that it was entitled to maintain the nonconforming billboard at its new location under the “grandfathering” clause of the zoning statute. The administrative law judge disagreed and ordered the billboard’s removal. The chancery court affirmed the decision of the administrative law judge. We affirm the chancery court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee, Velma Lynn Saunders Manuel, was injured in an automobile accident which occurred as she was returning to her home from receiving medical treatment for a compensable work injury. She sought benefits for the additional injury. Her employer, Davidson Transit Organization, denied the claim.  The trial court ruled that the additional injury arose from and in the course of the employment, and awarded 28% permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by finding the injury to be compensable. We affirm the judgment.

The Defendant, Ralph Lester Nelson, pled guilty to one count of violating a motor vehicle habitual offender order, a Class E felony; one count of driving without a seatbelt, a Class C misdemeanor; and one count of driving without proof of financial responsibility, a Class E misdemeanor. After a sentencing hearing, the trial court sentenced the Defendant as a multiple offender to an effective sentence of three years in the Tennessee Department of Correction (TDOC). On appeal, the Defendant claims that the trial court erred when it did not grant him alternative sentencing. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

This appeal involves forged endorsements on a check. The appellant had two checking accounts at the defendant bank. The appellant forged endorsements on a check, deposited the check into his account at the bank, and then removed the proceeds from his bank account. The bank later determined that the endorsements on the check were forged and debited the appellant’s other account in the amount of the fraudulently endorsed check. The appellant filed a lawsuit against the bank, and the bank counterclaimed for the amount of the check on which the appellant forged the endorsements. The bank filed a motion for summary judgment and submitted a statement of undisputed material facts in support of the motion. The appellant did not respond to the bank’s statement of undisputed material facts. The trial court granted summary judgment in favor of the bank, and the appellant appeals. We affirm and remand the case to the trial court for determination of damages against the appellant for a frivolous appeal.

This appeal arises from an October 2003 medical malpractice action filed against The Regional Medical Center at Memphis (“the Med”) and several physicians. Plaintiff voluntarily nonsuited his action and re-filed it within the one-year period provided by the savings statute codified at Tennessee Code Annotated § 28-1-105. The trial court awarded summary judgment to the Med upon determining Plaintiff could not rely on the savings statute where the General Assembly had amended the Governmental Tort Liability Act (“the GTLA”), bringing the Med within the scope of the GTLA as codified at Tennessee Code Annotated § 29-20-101 (2007 Supp.), et seq. The amendment became effective July 1, 2003. On November 26, 2007, the trial court entered final judgment in favor of the Med pursuant to Tennessee Rule of Civil Procedure 54.02. Plaintiff filed a timely notice of appeal to this Court. We affirm.

The State of Tennessee (“State”) sued Good Times, Ltd. (“Good Times”) 1 and others with regard to real property deeded to the State by Good Times after the State was sued for inverse condemnation by Good Times’ lessee, Pun Wun Chan d/b/a #1 China Buffet (“China Buffet”). The State claimed that it was entitled to indemnity from Good Times in the inverse condemnation action under its warranty deed. The Trial Court consolidated the State’s case against Good Times with the inverse condemnation action and then bifurcated the trial. The inverse condemnation case was tried before a jury and China Buffet was awarded a judgment against the State. The Trial Court then granted summary judgment to Good Times in the State’s case against Good Times and  dismissed the State’s case. The State appeals to this Court. We vacate the grant of summary judgment to Good Times, grant the State summary judgment against Good Times, and remand this case to the Trial Court for a determination of the amount of damages, and for further proceedings as necessary with regard to all other parties and claims.

The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court.

This is a consolidated wrongful death and personal injury case. In May 2002, three young boys walking beside the road were struck by a drunken driver in a residential subdivision. Two were killed, the third severely injured. The plaintiffs sued the developers of the subdivision, arguing that the absence of sidewalks in the area where the boys were walking was a cause of the accident. The trial court granted summary judgment in favor of the developers on grounds that the plaintiffs’ lawsuit was time-barred under the four-year statute of repose for improvements to real property, T.C.A. § 28-3-202. We agree with the trial court that the improvements to the real property on which the accident occurred were substantially completed more than four years prior to the filing of the lawsuits under the statutory definition at T.C.A. § 28-3-201(2), and therefore affirm.

This is a premises liability case. Appellant sued Appellee for injuries sustained in a fall on an icy parking lot that was maintained by Appellee. The material facts of the case are undisputed and, on principles of comparative fault, the trial court determined that Appellant was at least 50% liable for the injuries he sustained in that Appellant (1) ignored the open and obvious danger when he undertook to walk inside the bank, (2) decided not to use the drive-through window in order to avoid traversing the ice, and (3) undertook a risk that a reasonable person would have avoided. Finding no error, we affirm.