November 15, 2000 Volume 6 -- Number 188 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 06 New Opinion(s) from the Tennessee Court of Appeals 00 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink JAMES BECTON v. GRISHAM CORPORATION Court:TSC - Workers Comp Panel Attorneys: Karen P. Dennis and Steven D. Hawks, of Memphis, Tennessee, for the appellant, James Becton. Robin H. Rasmussen, of Cordova, Tennessee, for the appellee, Grisham Corporation. Judge: ELLIS First Paragraph: This is an appeal by James E. Becton of a decision by the trial court that Becton did not show by a preponderance of the evidence that he had sustained an injury by accident arising out of and in the scope of his employment with Grisham Corporation. He presents three (3) issues for review: 1) whether the Chancellor erred in excluding from consideration the testimony of the claimant's treating physician.; 2) whether the opinion of the treating physician is entitled to greater weight than that of a consultant; and 3) whether the evidence of vocational disability preponderates in favor of an award of permanent partial disability and medical payments in this case. http://www.tba.org/tba_files/TSC_WCP/bectonj.wpd JONATHAN DUFFY v. TECUMSEH PRODUCTS CO. Court:TSC - Workers Comp Panel Attorneys: David Hessing, Paris, Tennessee, for the appellant, Tecumseh Products Co. Ricky L. Boren, Jackson, Tennessee, for the appellee, Jonathan Duffy. Judge: MALOAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Tecumseh Products Company (Tecumseh), appeals the judgment of the Circuit Court of Henry County which ordered Tecumseh to pay medical expenses to the plaintiff, Jonathan Duffy (Duffy). For the reasons stated in this opinion, we find the trial court erred and reverse the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/duffyjon.wpd MARY ALICE SLOAN v. CONTINENTAL CASUALTY COMPANY Court:TSC - Workers Comp Panel Attorneys: Carl K. Wyatt, Memphis, Tennessee, for the appellant, Continental Casualty Company. George L. Morrison, Jackson, Tennessee, and Mary D. Perkins-Allen, Cookeville, Tennessee, for the appellee, Mary Alice Sloan. Judge: ELLIS First Paragraph: This is an appeal by Continental Casualty Company of a judgment for 35% permanent partial disability to the body as a whole awarded to Mary Alice Sloan for an injury that she sustained while working for Goody's Family Clothing, Inc. on November 1, 1996. The appellant agrees that the worker sustained a compensable, work-related injury and that they had paid temporary total disability benefits and medical expenses. The only issue is whether the preponderance of the evidence supports the trial court's award to the plaintiff. The judgment of the trial court is affirmed. The costs of this appeal are taxed to the defendant. http://www.tba.org/tba_files/TSC_WCP/sloan.wpd CYNTHIA JUNE BURGESS, et vir., RICKY ALBERT BURGESS, v. TIE CO. 1, LLC. Court:TCA Attorneys: Mark A. Williams, Manchester, Tennessee, for Plaintiffs-Appellants, Cynthia June Burgess and Ricky Albert Burgess. Gerald L. Ewell, Tullahoma, Tennessee, for Defendant-Appellee, Tie Co. 1, LLC. Judge: FRANKS First Paragraph: In this slip and fall action the Trial Court granted defendant summary judgment. We vacate and remand. http://www.tba.org/tba_files/TCA/burgessc.wpd In Re: ESTATE OF WILLETTE BONITA CARNAHAN, Deceased Court:TCA Attorneys: Phillip C. Kelly and Gwynn K. Smith, Gallatin, Tennessee, for the appellant, Roy Lee Rippy. C. L. Rogers, Gallatin, Tennessee, for the appellee, Timothy J. Cook. Judge: CAIN First Paragraph: This appeal arises from a will contest in which the defendant has appealed from a jury verdict invalidating a will on the grounds of unsound mind and undue influence. The deceased executed two wills. The first will was executed in 1985 naming the plaintiff who was a friend, employee, and the son of the family who cared for her in her later years as the sole beneficiary. The second will was executed in 1993 naming the defendant, a man who share cropped tobacco on her farm and was paid to mow her lawn, as the sole beneficiary. The plaintiff alleged that at the time the latter will was executed, the testator was of unsound mind and had been unduly influenced by the defendant. At trial, the jury returned special findings that the deceased was not of sound and disposing mind on December 29, 1993, when the second will was executed and that she was unduly influenced by the defendant in making the last will and testament. On appeal, the defendant presents three issues: (1) whether there was material, substantial evidence to support the jury findings, (2) whether the trial judge erred in instructing the jury regarding a presumption of undue influence and the burden of proof on finding a confidential relationship, and (3) whether the trial court erred in assessing court costs against the defendant and not awarding him attorneys fees. We affirm the judgment. http://www.tba.org/tba_files/TCA/carnahanest.wpd ANGELINA ROSE KEELE (ACOSTA-DELGADO) CLIFTON v. CARLOS ACOSTA-DELGADO Court:TCA Attorneys: John M. Cannon, Goodlettsville, Tennessee for Appellant, Carlos Acosta-Delgado Stephanie C. Hatchett, Nashville, Tennessee for the Appellee, Angelina Rose Keele (Acosta- Delgado) Clifton Judge: LILLARD First Paragraph: This is a post-divorce child custody dispute. The mother filed a petition to regain custody of the parties' three children after she had entered into an agreed order in 1995 granting custody to the defendant father. After hearing testimony on, inter alia, the father driving while intoxicated with the children in the car with him, the trial court found a material change in circumstances, granted custody to the mother, and ordered the father to pay child support. The father appeals, arguing that there was not a material change in circumstances sufficient to warrant a change in custody, that the trial court inappropriately considered his child support arrearage prior to the 1995 agreed order, and that the trial court miscalculated his income, resulting in an unreasonably high child support award. We affirm, finding a material change in circumstances warranting a change in custody, and finding that the evidence does not preponderate against the award of child support. http://www.tba.org/tba_files/TCA/cliftonar.wpd RICKIE L. HEATHERLY, et al. v. MERRIMACK MUTUAL FIRE INSURANCE COMPANY, et al. Court:TCA Attorneys: John O. Threadgill, Knoxville, Tennessee, and Parks T. Chastain, Nashville, Tennessee, for the appellants, Mutual Fire Insurance Association of New England, Inc. David B. Scott, Nashville, Tennessee, for the appellant, The Professional Company Insurance Adjusters, Inc. Joseph Y. Longmire, Hendersonville, Tennessee, for the appellees, Rickie L. Heatherly and Ronelle M. Heatherly. Judge: KOCH First Paragraph: This extraordinary appeal involves a dispute between two homeowners whose house was damaged by fire and the two insurance adjusting companies hired by the homeowners' insurance carrier to investigate their claim. Believing that their claim had been fraudulently processed, the homeowners filed suit in the Circuit Court for Sumner County against their insurance carrier and the two adjusting companies. The three defendants moved to dismiss the complaint as to the adjusting companies. After the trial court denied the motions and declined to grant an interlocutory appeal, the two adjusting companies petitioned for a Tenn. R. App. P. 10 extraordinary appeal. We granted the application and now reverse the trial court's denial of the motion to dismiss because the homeowners have conceded that they have no breach of contract claim against the adjusting companies and because we have concluded that the homeowners' claims are barred by the statute of limitations. http://www.tba.org/tba_files/TCA/heatherlyrl.wpd PATRICK RYAN MAHAN v. TONYA SUE HURST MAHAN Court:TCA Attorneys: Troy L. Brooks, Clarksville, Tennessee, for the appellant, Patrick Ryan Mahan. Elizabeth E. Burnett, Gregory D. Smith, Clarksville, Tennessee, for the appellee, Tonya Sue Hurst Mahan. Judge: COTTRELL First Paragraph: In this divorce case, the husband appeals the award of custody of the children to the wife, the admission of certain evidence at trial, and the redistribution of marital property on a post-judgment motion following his bankruptcy. We affirm the trial court. http://www.tba.org/tba_files/TCA/mahanp.wpd LOIS LYNN MILLER v. JAMES EARL MILLER Court:TCA Attorneys: Jack Green, Nashville, For Appellant, James Earl Miller Robert L. Jackson, Nashville; Larry Hayes, Jr., Nashville, For Appellee, Lois Lynn Miller Judge: CRAWFORD First Paragraph: In this divorce, both Husband and Wife have appealed contesting the trial court's division of marital property and alimony awards. The division of marital property is affirmed, alimony awards are modified, and the case is remanded for a determination of the value of Husband's retirement plan and a proper division thereof. http://www.tba.org/tba_files/TCA/millerloi.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2000 Tennessee Bar Association