APPELLATE COURT OPINIONS

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred by (1) not excluding the expert testimony of Dr. Albert Brandon for lack of trustworthiness and for an opinion based upon unreliable principles and methodology; and (2) finding that the employee proved medical causation for the employee's medical condition. We affirm.

At the time the deceased and plaintiff divorced, the deceased agreed to maintain the plaintiff as beneficiary of his life insurance policy with his employer. He subsequently left the employer, but returned to the employer and was issued another policy of life insurance on being re-employed, but made his then wife and his two children beneficiaries of that policy. Upon his death, plaintiff sued to enforce the terms of the Marital Dissolution Agreement, but the Trial Court refused and dismissed plaintiff’s action. On appeal, we hold that plaintiff is entitled to benefits under the second policy to the extent of the benefits agreed to under the terms of the first policy.

I concur in the majority’s affirmance of the defendant’s convictions. I write separately to express my disagreement with the majority’s conclusion that the defendant’s arrest was lawful.  Under the evidence at the suppression hearing, I believe that the defendant was not subject to a warrantless arrest because he was no longer at the “scene of a traffic accident” as contemplated by Tennessee Code Annotated section 40-7-103(a)(6) and that he was not otherwise subject to arrest for a misdemeanor committed in the officer’s presence or for a felony. See T.C.A. § 40-7-103(a)(1)-(3). I believe the defendant was at his home, where he was not subject to a warrantless arrest for misdemeanor driving under the influence. In this regard, I note that after the offense in this case, the law was changed to permit the warrantless arrest of an individual involved in an accident who has left the scene, provided the arrest takes place within four hours of the accident and the officer has probable cause to arrest the defendant for driving under the influence. See T.C.A. § 40-7-103(a)(10).  I do not believe this provision can apply in this case.

The Defendant, Carolyn J. Nobles, pled guilty to three counts of check forgeries, and a jury found her guilty of sixty-eight check forgeries. The trial court sentenced the Defendant, a Range I offender, to an effective sentence of seventeen years and six months. On appeal, the Defendant contends that the evidence is insufficient to sustain her convictions and that the trial court erred when sentencing her by denying her alternative sentencing and by ordering that some of her sentences run consecutively. Concluding there exists no error, we affirm the judgments of the trial court.

The defendant, Claude Thomas Davis, was convicted of driving under the influence, seventh offense (Class E felony); driving on a revoked license, third offense (Class A misdemeanor); and violation of the implied consent law (Class A misdemeanor) on October 26, 2004. He was sentenced to serve two years in the Department of Correction. On appeal, he contends that the trial court erred in denying his motion to suppress all evidence gathered by law enforcement at his home which is also a place of business located on the parking lot where the driving offense occurred. We affirm the judgments from the trial court.

This is a post-divorce proceeding wherein Appellee sought to enforce the provisions of a marital dissolution agreement and Appellant sought to modify alimony and child support provisions because of an alleged change of circumstances. The trial court ruled that Appellant was intentionally underemployed and attributed income that was comparable to his income at the time of divorce. Finding that the evidence in the record does not support a finding of willful underemployment, we vacate the judgment of the trial court and remand the case for further proceedings.

The petitioner, Wendell Daniel Washington, pled guilty in the Madison County Circuit Court to nine counts of child rape and one count of especially aggravated kidnapping and, pursuant to the plea agreement, received an effective forty-five-year sentence to be served at one hundred percent. In this appeal, he contends that he received the ineffective assistance of counsel and that he did not knowingly, intelligently, and voluntarily plead guilty. Upon review of the record and the parties’ briefs, we affirm the post-conviction court’s denial of relief.

Came the defendant, Mark A. Schiefelbein, through counsel, and the State of Tennessee, through the attorney general, upon the defendant’s appeal from the judgments of the Williamson County Circuit Court, where a jury convicted the defendant of seven counts of aggravated sexual battery and one count of especially aggravated sexual exploitation of a minor.  Following extensive briefing, oral argument, and our review of the record and the applicable law, we modify the imposition of consecutive sentences but otherwise affirm the convictions and sentences.

This is a breach of contract case. The defendant equipment company sells and leases underground construction equipment. The plaintiff worked for the defendant company as an outside salesman with a sales territory. The plaintiff salesman operated under a verbal employment agreement and was paid a minimum weekly salary plus commissions. During his employment, the plaintiff actively marketed equipment to a customer in his sales territory, and the customer ultimately signed a lease for several pieces of equipment. Soon after the lease was executed, the plaintiff quit working for the defendant. Subsequently, he sought his commissions due on the lease. The defendant equipment company refused to pay the commissions, claiming that the plaintiff salesman was not due any commissions on the lease because he quit work before the customer made any payments on the lease. The plaintiff filed the instant lawsuit for the commissions. After a bench trial, the trial court held that the plaintiff was entitled to commissions on the lease, but only with respect to one of the pieces of leased equipment. The plaintiff now appeals, arguing that he is entitled to commissions on two other pieces of equipment. We reverse, finding that the evidence preponderates in favor of a finding that the plaintiff was entitled to commissions for all three pieces of equipment.

Following a jury trial, Petitioner, Shannon Mayes, was convicted of first degree murder and sentenced to life in prison. This Court affirmed his conviction on direct appeal. State v. Shannon Mayes, No. M2002-02091-CCA-R3-CD, 2004 WL 49111, at *1-4 (Tenn. Crim. App., at Nashville, Oct. 15, 2003), perm. app denied (Tenn. May 3, 2004). Petitioner then brought a petition for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court subsequently denied the petition. He now appeals that denial, arguing that he is entitled to post-conviction relief because his trial counsel was ineffective in failing to file a motion to suppress his statement to police. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Appellant challenges the trial court's judgment dismissing Appellant's claims against the Executrix of her father's estate and enforcing the agreement made by the Appellant with her siblings to share equally in the net assets of her father's estate.  We affirm.

I concur fully in the majority opinion in this case, with the exception of the majority’s discussion of one issue. The majority notes that the executrix, Ms. Wood, was bound “to the exercise of that degree of diligence, prudence, and caution which a reasonably prudent, diligent, and
conscientious business [person] would employ in the management of [their] own affairs of a similar nature.” In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct. App. 1979). The majority finds that the trial court implicitly determined that Ms. Wood acted in accordance with this standard, insofar as she was attempting to recoup the original investments made by her father in Revelation and Lowery Riggan Company. It is unclear whether the majority holds that the evidence
preponderates in favor of this implicit finding, because the majority then goes on to note that, in order to collaterally attack an estate that has been closed without appeal, Ms. Lowery would be required to make allegations in the nature of fraud, mistake, or the like, and no such allegations were made.¹

To the extent that the majority’s opinion can be read to find that the trial court correctly found that Ms. Wood acted in a reasonably prudent manner, I must disagree. Certainly she acted in good faith, and it appears that her investment decisions were similar to those made by her father prior to his death. But her investment decisions were nevertheless unwise and imprudent. The fact that the Decedent invested heavily in Revelation and Lowery Riggan Company does not authorize the executrix to continue such unwise investments with the estate assets entrusted to her care.

Nevertheless, I concur because, as noted by the majority, Lowery’s allegations are insufficient to collaterally attack an estate that has been closed.

¹“An order or decree rendered on the final settlement of a personal 1 representative is not subject to collateral attack, except where there is fraud, misrepresentation, accident, or mistake, or where the court acted without jurisdiction or the order or decree was wholly void.” 34 C.J.S. Executors and Administrators § 868 (1998) (footnotes omitted).

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employee Michael Shane Bost argues that the trial court erred in denying him benefits based on his failure to comply with the notice provisions of the Workers’ Compensation Law, Tenn. Code Ann. § 50-6-201 (Supp. 2003). We agree. Accordingly, we reverse the judgment of the trial court and remand this matter for entry of a judgment awarding the benefits due employee.

 The trial court granted summary judgment to the employer in this workers’ compensation case, finding that the statute of limitations bars the employee’s claim and that the savings statute provides no relief to the employee. We hold that the employee’s complaint for workers’ compensation benefits is barred by the statute of limitations. We further hold that the employee failed to file his complaint within the time allowed by the savings statute. Accordingly, we affirm the trial court’s grant of summary judgment.

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the appellant employer asserts that the evidence preponderates against the trial court's award to the employee of a 39% permanent partial disability to the body as a whole, asserting that the impairment resulted from a preexisting condition. The appellant also contests the lump-sum award to the employee of $85,000.00, asserting that the appellant employer has a companion disability program. We conclude that the findings of the trial judge should be affirmed.

This appeal arises from a wrongful death action tried by a jury. The jury allocated 51% fault to Defendant and assessed total damages in the amount of $1,250,000. The trial court denied Defendant’s motions for new trial, remittitur, and judgment in accordance with motion for directed verdict; entered judgment against Defendant in the amount of $637,500; and awarded Plaintiff discretionary costs. Defendant appeals. We affirm in part, reverse in part, and remand with suggestion of remittitur.

In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.

The Plaintiffs, who own property adjacent to a shooting range, sought declaratory relief from the Defendant property owners and leaseholders of the range. Rutherford County, whose board of commission had passed a resolution to reclassify the property in 1992 to permit usage as a range, was joined as a Defendant. The chancellor ruled that the action was barred by the statute of limitations and granted motions to dismiss filed by each of the Defendants. The Court of Appeals reversed, holding that the county resolution reclassifying the property was void. We granted this appeal to consider whether the reclassification qualified as a rezoning amendment; if so, whether the deviation by the Rutherford County legislative body from the issue considered by its planning commission subjected the ordinance to a declaration of void ab initio; and, finally, whether the record establishes circumstances which might preclude the Plaintiffs from a remedy. Because the reclassification qualified as a zoning amendment, the deviation by the county from the proposal before the planning commission was substantial, and because there are no circumstances in the record which might preclude the Plaintiffs relief, the judgment of the Court of Appeals is affirmed, and the cause is remanded to the chancery court.

The Appellant, William Clay Bohanan, Jr., was convicted by a Davidson County jury of felony escape and vandalism of property valued under $500, a Class A misdemeanor. On appeal, Bohanan raises two issues for our review: (1) whether the trial court erred in failing to charge the jury on the defenses of duress and necessity; and (2) whether the evidence was sufficient to support the convictions. Following review, the judgments of conviction are affirmed.

After an internal administrative hearing, the appellee, the City of Memphis (“the City”), discharged Police Officer Jack Vincent (“Vincent”), the appellant. The Civil Service Commission (“the Commission”) heard Vincent’s appeal, ruled that the termination was not reasonable, and ordered reinstatement with full back pay and benefits. Subsequently, the City filed a petition for writ of certiorari challenging the decision of the Commission. The Chancery Court reviewed the record and affirmed the Commission. On direct appeal, however, the Court of Appeals reversed, holding that Vincent was lawfully terminated. We granted an application for permission to appeal to ascertain whether substantial or material evidence supported the decisions of the Commission and the Chancery Court. Because it is our view that there was no substantial or material evidence supporting the reinstatement of Vincent, we affirm the judgment of the Court of Appeals.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. New Generations, Inc. ("the Employer") has appealed the action of the trial court, which determined that Mike Curran ("the Employee") suffered a compensable injury to his right shoulder on March 19, 21, and then suffered an aggravation of that pre- existing injury on January 24, 22. The trial court found that the Employee suffered 36% permanent vocational disability to the body as a whole as a result of the first injury and 3% permanent vocational disability to the body as a whole as a result of the second injury. We have considered the evidence and conclude that the proof does not preponderate against the holding of the trial court as to the liability of the Employer. We therefore affirm the findings of the trial court with regard to these issues.

The Employer has appealed the determination by the trial court awarding compensation to the Employee. After consideration of the evidence, the Workers' Compensation Appeals Panel finds that the evidence does not preponderate against the finding of the trial court with regard to causation of the Employee's respiratory injury or the amount of vocational disability determined by the trial court.

In this case, we granted permission to appeal to determine whether a prisoner serving concurrent state and federal sentences in a federal correctional institution may attack his state convictions pursuant to a petition for writ of habeas corpus filed in this state. We hold that the petitioner, who is incarcerated in a federal correctional institution serving concurrent state and federal sentences, is not barred from challenging his state convictions by a state writ of habeas corpus. Because the petitioner has failed to attach the requisite documentation in support of his claim that his sentences are illegal, however, we affirm the summary dismissal of the petition but do so on different grounds than either the trial court or the Court of Criminal Appeals. Upon automatic appeal pursuant to Tennessee Code Annotated section 39-13-206(a)(1) (2003), this Court  entered an order specifying four issues for oral argument:3 (1) whether the trial court erred in  allowing the State to cross-examine the defendant regarding the circumstances of the offenses  and, if it did, was the error harmful; (2) whether the sentence was invalid under any of the  mandatory issues for review set out in Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D) (2003); (3) whether the trial court’s instruction to the jury that aggravated robbery is a felony whose statutory elements involve the use of violence to the person violated the Sixth and Fourteenth Amendments of the United States Constitution; and (4) whether the trial court erred in denying the defendant’s motion to suppress. After a careful review of the record and relevant legal authority, we hold that the trial court erred in allowing the State to cross-examine the defendant and that the error was reversible. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the case for a new capital sentencing hearing.

The Appellant, Daniel Eugene Bradford, appeals the sentencing decision of the Hardin County Circuit Court. Under the terms of a plea agreement, Bradford pled guilty to aggravated assault and misdemeanor assault, receiving concurrent sentences of three years for the felony conviction and eleven months and twenty-nine days for the misdemeanor conviction. The manner and service of the sentences were to be determined by the trial court. On appeal, Bradford challenges the trial court’s denial of probation. After review of the record, we affirm the judgment of the trial court.

Before the court is petitioner Thomas Edward Hogue’s appeal from the Davidson County Criminal Court’s dismissal of his October 2005 “Petition to Set Aside Guilty Plea and to Issue a Writ of Error Coram Nobis.” Based upon an untimely filing of the petition, we affirm the order of dismissal.