APPELLATE COURT OPINIONS

This workers compensation appeal has been referred to the Special Workers Compensation Appeals Panel fo the Supreme Court in accordance with Tennessee Code Annotated ' 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he sustained injuries to both knees as a result of an accident at work. The trial court found that he had sustained an injury, but did not have permanent impairment or disability as a result of the injury. Employee appeals, contending that the evidence demonstrates that he sustained permanent disability. He also contends that the trial court erred by ordering that he was not entitled to future medical treatment for he knees. Employer contends that the trial court erred by finding that Employee sustained a compensable injury. We affirm the trial courts finding that Employee did not sustain a permanent disability, but conclude that the portion of the judgment concerning future medical treatment was premature, and modify the judgment accordingly.

In this appeal, we are asked to determine whether the trial court erred in finding that the phrase “taking up residence,” as used in the parties’ marital dissolution agreement, equated to cohabitation, and in finding that Wife did not cohabitate with an unrelated male in violation of such agreement. We are also asked to determine whether the trial court erred in finding no material change of circumstances warranting a modification of Husband’s alimony obligation, and in denying Husband’s motions to re-open and supplement proof and for a new trial, based on newly-discovered evidence. 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 § 506-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sought permanent disability benefits for separate injuries, one to his neck and left shoulder and the other to his right knee. His authorized treating physician initially opined that he had sustained permanent impairment as a result of his work injuries. However, on cross-examination, the doctor stated that he was unaware that Employee had been receiving treatment for neck and shoulder symptoms for more than ten years prior to the work injury. He testified that, if true, such information would change his opinion. He also testified that a comparison of pre- and post-injury MRI’s of the right knee left him unable to opine with reasonable medical certainty concerning that injury. A second doctor,  who later performed surgery on the knee, opined that Employee had a work-related injury. The trial court found that Employee had failed to sustain his burden of proof. Employee has appealed, contending that the evidence preponderates against the trial court’s findings. We affirm the judgment as to the alleged neck and shoulder injury and reverse as to the knee injury.

The defendant, Walter Roby, was convicted by a Shelby County jury of reckless endangerment with a deadly weapon, a Class E felony. For his conviction, the defendant was sentenced as a Range II offender to three years incarceration. On appeal, the defendant asserts that the evidence was insufficient to sustain the conviction. Upon review, we affirm the judgment of the trial court.

Defendant has appealed from a traffic court violation conviction based on documentary evidence created by a camera at a street intersection. The Trial Court affirmed the City Court conviction and defendant has appealed to this Court raising several issues. Upon review of the record and consideration of the evidence, we affirm the Judgment of the Trial Court.

The defendant, Christopher Tyus, was convicted by a Madison County jury of one count of theft over $1000. He was subsequently sentenced to three years and six months as a Range I standard offender. On appeal, the defendant challenges the sufficiency of the convicting evidence. After a thorough review of the record, we affirm the judgment of the trial court.

Following a jury trial, Defendant, Aaron Duchesne, was found guilty of theft of property valued between $10,000 and $60,000, a Class C felony. At the conclusion of Defendant’s sentencing hearing, the trial court sentenced Defendant as a Range II, multiple offender, to ten years, and ordered Defendant to serve his sentence consecutively to any sentences that might be imposed in case numbers 06-05119 and 06-04963 which were pending in Shelby County at the time of the sentencing hearing. On appeal, Defendant argues that (1) the evidence was insufficient to support his conviction; (2) the trial court failed to perform its function as thirteenth juror; and (3) the trial court erred in its sentencing determinations concerning the length of his sentence and in imposing consecutive sentencing. After a thorough review, we affirm Defendant’s theft conviction and the length of his sentence. We reverse the trial court’s imposition of consecutive sentencing and remand for entry of a judgment consistent with this opinion.

Appellant, George Anthony Braddock, was indicted for first degree premeditated murder for the death of his wife. Appellant was found guilty by a jury and sentenced to life in prison. On appeal, Appellant challenges the sufficiency of the evidence. We determine that the evidence is sufficient to support a conviction for first degree murder. Accordingly, the judgment of the trial court is affirmed.

This 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) (2008). While serving as a police officer, an employee developed coronary artery disease and made a claim for workers' compensation benefits. The trial court granted an award of permanent and total disability. The City appealed, contending that the trial court erred (1) by holding that the employee's claim not to be barred by a prior settlement agreement, (2) by permitting hearsay testimony to be admitted as parol evidence, and (3) by calculating the rate of compensation based on when the coronary artery disease became disabling, rather than on the condition addressed by the prior settlement. The judgment of the trial court is affirmed.

The Defendant-Appellant, Louis Mayes (hereinafter “Mayes”), was convicted by a Shelby County jury of first degree premeditated murder. The only issue Mayes presents for our review is whether the evidence is sufficient to support his conviction. He specifically contends that two witnesses were accomplices as a matter of law and that his conviction was based on their  testimony.  Finding no reversible error, we affirm the judgment of the trial court.

The trial court denied a motion to terminate alimony based upon a finding that the award was for alimony in solido. Because the marital dissolution agreement provided that the award was subject to review, we find the award to be for alimony in futuro and therefore subject to termination upon the remarriage of the wife. We reverse the decision of the trial court.

The defendant, Abby L. Mills, was indicted by the Lauderdale County Grand Jury of possession of a Schedule II controlled substance, cocaine, with the intent to deliver; possession of a Schedule III controlled substance, Hydrocodone, with the intent to deliver; and possession of a Schedule VI controlled substance, marijuana, with the intent to deliver over .5 ounces. After a hearing, the trial court granted defendant’s motion to suppress evidence of items found in the defendant’s home. On appeal, the state asserts that the trial court erred in suppressing the evidence obtained as a result of a valid search warrant. Upon 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 § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee alleged that he sustained a compensable neck
injury. His employer denied the claim. The trial court found for the employee and
awarded 40% permanent partial disability (“PPD”). The employer has appealed, contending that the evidence preponderates against the trial court’s finding that the employee’s injury occurred at work. In addition, the employer asserts that the trial court erred by directing a written inquiry concerning causation to be sent to the treating physician and by considering the response to that inquiry. We affirm the judgment.

The state appeals the post-conviction court’s grant of post-conviction relief to the petitioner, Eddie Wayne Gordon. The state argues that the post-conviction court erroneously determined that the petitioner did not voluntarily and understandingly enter his plea of guilty to first degree murder.  Upon our review of the record and the parties’ briefs, we reverse the judgment of the post-conviction court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. An employee who experienced both hearing loss and tinnitus filed suit in the Criminal Court for Wilson County seeking workers’ compensation benefits. Following a bench trial, the trial court assigned the injury to the employee’s hearing as a scheduled member and awarded the employee a 33a% permanent partial disability to his hearing. The employer asserts on appeal that the trial court erred by assigning the injury to the employee’s hearing rather than to the body as a whole. We agree with the employer and reverse the trial court’s decision to assign the injury to the employee’s hearing rather than to the body as a whole.

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 alleged that she sustained a gradual injury to her hip as a result of her work. She ultimately required a total hip replacement. The doctor who performed that surgery testified that she had a congenital condition which caused the hip to become arthritic, and which usually caused the need for hip replacement surgery. He gave conflicting testimony concerning the effect of her employment on the condition. The trial court held that she had sustained a compensable aggravation of the congenital condition and awarded 22.5% permanent partial disability. Employer has appealed,  contending that the evidence preponderates against the trial court’s decision. We affirm the judgment.

The defendant was stopped by a City of Oak Ridge police officer and cited for speeding. Following an adverse decision in municipal court, the defendant appealed to the trial court. The defendant attempted to raise the defense that the posted speed limit of 45 mph was not legally established, but the trial court would not allow the argument. Subsequently, the trial court found the defendant guilty of speeding and imposed its judgment. On the initial appeal to this court, we vacated the trial court’s judgment and remanded the matter to allow the defendant the opportunity to present the defense. At the second trial, the defendant failed to put on proof that the posted speed limit was invalid. Once again, the trial court found her guilty of speeding. We affirm.

The defendant, Michael Matthew Landers, was convicted of driving under the influence (DUI) and driving under the influence per se, Class A misdemeanors, in the Davidson County Criminal Court. He was subsequently sentenced to concurrent terms of eleven months and twenty-nine days, four days of which was to be served in the county jail. On appeal, the defendant contends that the trial court erred by failing to instruct the jury with regard to the defense of necessity. Following review of the record, we agree with the defendant that the facts of the case, when viewed in the light most favorable to the defendant, support such a charge. As such, we reverse the convictions and remand the case for a new trial.

This workers’ compensation appeal has been referred to the Special Workers'
Compensation Appeals Panel of the Supreme Court in accordance with Tennesse
Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact
and conclusions of law. After review, we conclude that an employee may seek reconsideration under Tennessee Code Annotated section 50-6-231 by either filing a
motion in the original proceeding or by filing a new action in the same court and
county in which the original was entered. The judgment of the trial court is affirmed.

The defendant, Mario Andre McElrath, was convicted of the attempted sale of .5 grams or more of cocaine within one thousand feet of a school zone. On direct appeal, this court found plain error in the trial court’s imposition of a ten-year, Range I sentence for a Class B felony and remanded for resentencing for a Class C felony. State v. Mario Andre McElrath, No. W2006-02621-CCA-R3-CD, 2007 WL 4245723 (Tenn. Crim. App. Dec. 3, 2007). On resentencing, the trial court imposed a sentence of four years for a Class C felony for a violation of the Drug Free School Zone Act (DFSZA). In this appeal as of right, the defendant argues that the exemption from increased incarceration provided in Tennessee Code Annotated section 39-17-432(b)(3) should apply to the release eligibility provision of section -432(c). Following our review, we conclude that the exemption does not apply to the release eligibility provision and affirm the judgment of the trial court.

Property owners appeal an order authorizing the City of Franklin to demolish a house on their property. Because we have determined that the procedure used by the city did not comply with due process, we reverse.

The defendant was initially charged with premeditated first degree murder and felony murder of one victim (Counts I and II in the indictment) and the attempted first degree murder of a second victim (Count III). He was found guilty of the lesser-included offense of second degree murder on the first count, a mistrial resulted on the second count, and, as to the third count, the jury acquitted the defendant on the primary charge but returned a guilty verdict of attempted second degree murder, a lesser-included offense. On direct appeal, the Court of Criminal Appeals, because of error in the instructions to the jury, reversed the convictions on Counts I and III and remanded for a new trial. Prior to the second trial, the State voluntarily dismissed Count III, the attempted second degree murder charge, and prosecuted the defendant only on Count I, for second degree murder, and Count II, for felony murder, both of the first victim. After the jury returned verdicts for the lesser-included offenses of voluntary manslaughter on Count I and second degree murder on Count II, the trial court imposed sentence and merged the two convictions. The defendant appealed, contending that because the prior jury had in effect returned a verdict of acquittal on the attempted first degree murder of the second victim, and because the alleged attempted first degree murder was the only possible predicate offense to support the felony murder charge in the retrial, the trial court had erred by allowing the
felony murder charge to go to trial. The Court of Criminal Appeals affirmed the conviction. Because collateral estoppel, as a corollary in criminal cases of the constitutional protection against double jeopardy, precludes a guilty verdict on the requisite predicate offense for felony murder, we must reverse and dismiss the second degree murder conviction as a lesser-included offense of the improper primary charge. Otherwise, the judgment of the Court of Criminal Appeals upholding the conviction and sentence for voluntary manslaughter is affirmed. Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed in Part and Affirmed in Part
 

I concur with the Court’s decision to affirm Mr. Thompson’s conviction and sentence for
voluntary manslaughter and to reverse his conviction for second degree murder. I write separately to emphasize my conclusion that it is the doctrine of direct estoppel, not the doctrine of collateral estoppel, that prevents the State from proceeding against Mr. Thompson on the felony murder charge.

This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent’s parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis’ immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City’s immunity was waived.