Opinion Flash

January 16, 2003
Volume 9 — Number 011

Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 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

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

WALTER A. FARRIS, et al. v. WILLIAM S. TODD, et al.



Larry Clayton Vaughan, Knoxville, Tennessee, and Emmit F. Yeary,
Abingdon, Virginia, for the appellants, Walter A. Farris and Gordon R.

Thomas L. Kilday and Thomas J. Garland, Greeneville, Tennessee, for
the appellees, William S. Todd and Thomas D. Dosset, individually and
doing business as Todd & Dosset, P.C.                         


First Paragraph:

Walter A. Farris ("the client") and his brother, Gordon Farris, filed
an amended complaint against the client's former attorneys, William S.
Todd and Thomas D. Dossett (collectively "the Lawyers"), seeking a
declaratory judgment that the plaintiffs are the "sole owners" of
certain - mostly art -  items, including a valuable painting entitled
"The Duke of Mantua" ("the Duke of Mantua painting").  The Lawyers
filed a motion for summary judgment relying upon an agreement dated
June 27, 1997 ("the Agreement"), executed by the four parties to this
litigation.  The Lawyers contend that the ownership of the personalty
in question is as indicated in the Agreement.  The plaintiffs, on the
other hand, argue that the Agreement is not supported by new
consideration and that the Lawyers failed to advise the client, before
the plaintiffs executed the Agreement, "that any claim [the Lawyers]
might have against [the client] for attorney fees had long since
expired pursuant to the statute of limitations."  The trial court
granted the Lawyers summary judgment, finding that the Agreement "is
valid, binding and enforceable among all parties hereto, in all
respects, in accord, satisfaction and settlement of all claims
existing between the parties."  The plaintiffs appeal, contending that
the trial court erred in granting the Lawyers summary judgment.  We

CARROL PRESTON FLANNARY v. JOYCE ANN FLANNARY Court:TCA Attorneys: James H. Beeler, Kingsport, Tennessee, for the Appellant, Carrol Preston Flannary. John D. Parker, Kingsport, Tennessee, for the Appellee, Joyce Ann Flannary. Judge: SWINEY First Paragraph: Carrol Preston Flannary ("Husband") and Joyce Ann Flannary ("Wife") were divorced in 2001. As part of the divorce, the Trial Court entered an order awarding Wife, inter alia, a judgment for one- half of $48,000 determined to be missing from the marital estate; holding Wife's interest in real property deeded to Wife and her siblings by their mother constituted separate property of Wife; and dividing the parties' interest in their residential property with one-half the value going to each party. Husband appeals. We vacate the award to Wife of $24,000, affirm as modified, and remand. http://www.tba.org/tba_files/TCA/flannarycp_opn.wpd
WAYNE M. FULLER v. DONAL CAMPBELL, et al. Court:TCA Attorneys: Wayne M. Fuller, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee. Judge: CANTRELL First Paragraph: An inmate in the custody of the Department of Correction filed an action in the Chancery Court of Davidson County seeking a declaratory judgment stating that because of his medical condition the Department should be required to test him for drugs by a patch rather than by a urine sample. The chancellor granted the state's motion to dismiss on the grounds that the court was without authority to entertain a declaratory judgment against the state or its officers and that the complaint did not state a cause of action under the Administrative Procedures Act. We affirm and note the additional ground that Mr. Fuller essentially seeks an advisory opinion and does not allege a live controversy. http://www.tba.org/tba_files/TCA/fullerwm_opn.wpd
WAYNE M. FULLER v. DONAL CAMPBELL, et al. Court:TCA KOCH CONCURRING http://www.tba.org/tba_files/TCA/fullerwm_con.wpd
TIMOTHY DOUGLAS GAITHER, et al. v. JESSIE R. BUSH and ANGELA FAYE WHITE v. TIMOTHY DOUGLAS GAITHER Court:TCA Attorneys: Charles Galbreath, Nashville, TN, for Appellant Randall W. Morrison, Tullahoma, TN, for Appellee Judge: HIGHERS First Paragraph: This is a case involving the division of wrongful death proceeds between the divorced parents of the deceased. The deceased was eighteen, healthy, and about to enter the military. The plaintiff mother asked for an equal division of the proceeds of a wrongful death settlement entered by the father. Also included in the settlement was the father's action, individually, for his emotional trauma suffered while witnessing his son's death. A jury was asked to divide the settlement proceeds between the parties. The jury found that all of the damages for the pecuniary value of the son's life were attributable to the mother and father, and none were attributable to the son. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/gaithertd.wpd
MONICA L. GOLDBERG v. RUSSELL A. GOLDBERG Court:TCA Attorneys: Thomas F. Bloom, Nashville, Tennessee, for appellant, Russell A. Goldberg Virginia Lee Story, Franklin, Tennessee, for appellee, Monica L. Goldberg Judge: LILLARD First Paragraph: This is a divorce case involving alimony and property division. The parties have five children; the oldest is severely handicapped and the three youngest are minors. The husband is a hospital consultant. The wife works part-time as a nurse and owns a small business. In addition to child support, the trial court ordered the husband to pay substantial alimony in futuro, and assume approximately ninety-eight percent of the marital debt. The husband was also ordered to maintain a considerable amount of life insurance to secure his spousal and child support obligations. On appeal, the husband argues that the award of alimony is excessive, that rehabilitative alimony instead of alimony in futuro should have been awarded, that the trial court improperly divided the marital debt, and that the amount of life insurance required was excessive. We affirm in part and reverse in part. We affirm the trial court's holding with regard to the division of marital debt and the amount of life insurance, and modify the award of alimony, awarding rehabilitative alimony in a reduced amount. http://www.tba.org/tba_files/TCA/goldbergml.wpd
DOROTHY WALMSLEY SMITH KREUSER v. BARRY RAY SMITH Court:TCA Attorneys: Marlene Eskind Moses, Thomas F. Bloom, Nashville, TN, for Appellant Robert Todd Jackson, Nashville, TN, for Appellee Judge: HIGHERS First Paragraph: This is a child support case. The trial court increased Mr. Smith's child support from $3,500.00 per month to $10,000.00 per month based on his substantial increase in income. For the following reasons, we modify this decision of the trial court. http://www.tba.org/tba_files/TCA/kreuserdws.wpd
THOMAS CORNELIUS MONROE v. CATHERINE ROBINSON (MONROE) Court:TCA Attorneys: Matthew Mayo, Nashville, TN, for Appellant Abby R. Rubenfeld, Rose T. Palermo, Nashville, TN, for Appellees Judge: HIGHERS First Paragraph: This appeal arises from the granting of a petition to object to removal of a minor child. The trial court granted the father's petition and prevented the mother from relocating out of state with the minor child, finding that the parties spent substantially equal time with the child and that the move was not in the child's best interest. The parties raise multiple issues on appeal. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/monroetc.wpd
JAMES H. SMITH, et ux. v. JOE E. HUKOWICZ, et al. Court:TCA Attorneys: M. Taylor Harris, Jr., Nashville, TN, for Appellant Michael W. Edwards, Hendersonville, TN, for Appellees Judge: HIGHERS First Paragraph: This is an interlocutory appeal from the trial court's order to partially vacate an arbitration award. The arbitration was the result of a dispute between the purchasers of a home, the Smiths, the builder, Mr. Hukowicz, and the owner of the home, Mr. Herring. The dispute arose over who was liable for the numerous problems the Smiths encountered after closing on the home. The Arbitrator determined that, although Mr. Herring and Mr. Hukowicz were partners in a joint venture to build and sell the house, only Mr. Hukowicz was liable to the Smiths for the problems with the house by virtue of the Builder's Limited Warranty that the parties had signed. The trial court vacated this portion of the arbitration award and ordered a new trial on the issue of Mr. Herring's liability. For the reasons below, we reverse. http://www.tba.org/tba_files/TCA/smithjh.wpd

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