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.
Court:TCA
Attorneys:
Larry Clayton Vaughan, Knoxville, Tennessee, and Emmit F. Yeary,
Abingdon, Virginia, for the appellants, Walter A. Farris and Gordon R.
Farris.
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.
Judge: SUSANO
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
affirm.
http://www.tba.org/tba_files/TCA/farriswa.wpd
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
CARROL PRESTON FLANNARY v. JOYCE ANN FLANNARY
Court:TCA
SUSANO CONCURRING AND DISSENTING
http://www.tba.org/tba_files/TCA/flannarycp_con.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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