Opinion FlashDecember 16, 2003Volume 9 — Number 229 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):
TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password, you can look it up on-line at http://www.tba.org/getpassword.mgi . If you are a TBA member, but do not have a username and password, you can receive one online at http://www.tba.org/signup.mgi. Here's how you can obtain full-text version. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Howard H. Vogel CARROL PRESTON FLANNARY v. JOYCE ANN FLANNARY Court:TSC Attorneys: Timothy R. Wilkerson and John D. Parker, Kingsport, Tennessee, for the appellant-defendant, Joyce Ann Flannary. James H. Beeler, Kingsport, Tennessee, for the appellee-plaintiff, Carrol Preston Flannary. Judge: HOLDER First Paragraph: We granted permission to appeal to determine whether the trial court erred in dividing as marital property funds that were missing at the time the divorce complaint was filed. We hold that the missing funds are not marital property that can be divided between the parties. However, we also conclude that the trial court may properly consider Husband's careless handling of those funds in distributing property that does constitute marital property. Therefore, we affirm the judgment of the Court of Appeals as modified, and we remand the case to the trial court for reconsideration of its property division and alimony award. http://www.tba.org/tba_files/TSC/flannarycp.wpd EDWARD CARL CAKSAKKAR. v. GOODYEAR TIRE & RUBBER CO., and JAMES FARMER, DIRECTOR, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, WORKERS' COMPENSATION DIVISION, SECOND INJURY FUND Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General and Reporter and E. Blaine Sprouse, Asst. Attorney General, Nashville, Tennessee for the appellant, Second Injury Fund. Jeffrey A. Garrety, Jackson, Tennessee, for the plaintiff/appellee, Edward Carl Caksackkar. Randy N. Chism, Elam, Union City, Tennessee, the defendant/appellee, Goodyear Tire & Rubber Co. Judge: GOLDIN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn.Code Ann. S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the plaintiff was permanently and totally disabled. The parties do not contest this finding. The appellant, Second Injury Fund, argues, however, that the trial court erred in its apportionment of liability between the Fund and the employer when it held that only 25% permanent vocational impairment should be apportioned to the employer and 75% apportioned to the Fund as a result of the plaintiff's last back injury. For the reasons discussed below, the Panel has concluded that the judgment of the trial court should be modified so that 75% permanent vocational impairment is apportioned to the employer and 25% apportioned to the Fund. http://www.tba.org/tba_files/TSC_WCP/caks.wpd WILLIAM PERRIN v. GAYLORD ENTERTAINMENT CO., ET AL. CORRECTED OPINION Court:TSC - Workers Comp Panel Attorneys: Ann Buntin Steiner, Nashville, Tennessee, for the Appellant, William Perrin. Richard K. Smith and Kathleen W. Smith, Nashville, Tennessee, for the Appellee, Gaylord Entertainment Company. Judge: ANDERSON First Paragraph: We granted review to determine whether the employee's action for reconsideration of his workers' compensation benefits was filed too late pursuant to Tennessee Code Annotated section 50-6- 241(a)(2) (1999). The trial court found that the employee's action to reconsider his prior award was untimely because it was filed more than one year after his employment with his pre-injury employer had ended and also found that the employee's settlement with his pre-injury employer had waived his right to reconsideration. The Special Workers' Compensation Appeals Panel affirmed the trial court's ruling on the ground that the action was untimely. After reviewing the record and applicable authority, we agree that the employee's action to reconsider his award of benefits was untimely because it was not filed within one year of his loss of employment with his pre-injury employer as required by Tennessee Code Annotated section 50-6-241(a)(2). Accordingly, we affirm the findings of fact and conclusions of law of the Panel. CORRECTED OPINION http://www.tba.org/tba_files/TSC_WCP/perrinw.wpd J.L. BEECHUM, JR. v. CHARLES TRAUGHBER Court:TCA Attorneys: J.L. Beechum, Jr., Clifton, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General, and Dawn Jordan, Assistant Attorney General, for the appellee, Charles Traughber. Judge: CAIN First Paragraph: Petitioner, an inmate with the Department of Corrections, sought judicial review of decisions of the Tennessee Board of Probations and Parole first to revoke his parole and then to decline to release him on parole. The Chancery Court for Davidson County denied the inmate's request for relief, and the inmate has appealed. We have determined that the inmate's challenge to the revocation of his parole was untimely and that the inmate's complaint regarding the late certification of the records regarding his Georgia conviction is without merit. Accordingly, we affirm the dismissal of the inmate's petition. http://www.tba.org/tba_files/TCA/beechumjl.wpd JENNIFER L. BISCAN, ET AL. v. FRANKLIN H. BROWN, ET AL. Court:TCA Attorneys: Alan M. Sowell, John J. Hollins, Jr., Joseph T. Howell, Nashville, Tennessee, for the appellants, Franklin Hughes Brown, Paul N. Worley. Philip N. Elbert, Mark P. Chalos, Nashville, Tennessee, for the appellees, Jennifer L. Biscan and Robert S. Biscan. Judge: COTTRELL First Paragraph: After attending a party where alcohol was present, a minor intoxicated driver and minor guest passenger were involved in an automobile accident in which the passenger suffered serious injury. The passenger sued the driver and the adult host of the party. The jury awarded the minor guest passenger damages and allocated fault 70% to the minor intoxicated driver, 15% to the adult party host, and 15% to the minor guest passenger. The driver and the host appeal various rulings of the trial court. We affirm. http://www.tba.org/tba_files/TCA/biscanj.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. ERIKA EVERSON ET AL. Court:TCA Attorneys: Barbara A. Deere, Dyersburg, Tennessee, for the appellant Erika Everson. Douglas Earl Dimond, Nashville, Tennessee, for the appellee State of Tennessee, Department of Children's Services. Judge: KIRBY First Paragraph: This case involves the termination of parental rights. The two children lived with their single mother in Arkansas. The mother and children stayed temporarily with the children's grandfather in Arkansas, who sexually abused one of the children. After the grandfather threatened the mother, she and the children went to Tennessee and stayed with the children's grandmother. The mother went back to Arkansas and left the children with the grandmother in Tennessee. The grandmother repeatedly sought medical attention for one of the children. A physician determined that the child was a victim of Manchausen Syndrome by Proxy, a form of child abuse in which the caretaker exaggerates or secretly induces symptoms of illness in the victim and then seeks medical attention for the victim's "illness." Both children were taken into custody by the Tennessee Department of Children's Services. A permanency plan was designed for the children's mother. The mother failed to comply with the permanency plan, provide support for the children, or visit the children on a regular basis. In addition, she abducted the children from foster care and would not protect them from the abusive grandmother. The State filed a petition to terminate the mother's parental rights. The trial court granted the petition, and the mother appeals. We affirm, finding that termination of the mother's parental rights was warranted on several grounds and that termination was in the children's best interest. http://www.tba.org/tba_files/TCA/everson.wpd SHAYLE ISRAEL HIRSCHMAN v. SUANNE GOLDSTEIN HIRSCHMAN Court:TCA Attorneys: C. Suzanne Landers and Vicki J.Singh of Memphis For Appellant, Shayle Hirschman J. Alan Hanover and Barbara B. Lapides of Memphis For Appellee, Suanne Goldstein Hirschman Judge: CRAWFORD First Paragraph: This divorce case involves issues concerning division of marital property and particularly the concepts of commingling and transmutation as applied to wife's separate property. The trial court found there had been no commingling or transmutation of wife's separate property and made a division of the marital property accordingly. Husband appeals. We affirm. http://www.tba.org/tba_files/TCA/hirschma.wpd CHARLES LARRY HONEYCUTT v. ANN MARIE MIGLIACCIO HONEYCUTT Court:TCA Attorneys: Jerry A. Schatz, Memphis, For Appellant, Charles Larry Honeycutt Stevan L. Black and Vickie Hardy Jones, Memphis, For Ann Marie Migliaccio Honeycutt Judge: CRAWFORD First Paragraph: This appeal involves the interpretation of an MDA incorporated into a Final Decree of Divorce concerning a provision for termination of alimony upon wife's cohabitation with an unrelated male. The trial court denied Husband's petition for termination and Husband appeals. We reverse and remand. http://www.tba.org/tba_files/TCA/honeyc.wpd STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, IN THE MATTER OF: D.L.(P.)C., J.L., A.L., and K.L., ET AL. Court:TCA Attorneys: J. Stephen Mills, Nashville, Tennessee, for the appellant, Holly P. Lowery. Paul G. Summers, Attorney General and Reporter and Douglas Earl Dimond, Assistant Attorney General, for the appellee, State of Tennessee Department of Children's Services. Nick Perenich, Nashville, Tennessee, Guardian ad Litem for J.L., A.L. and K.L. Judge: FARMER First Paragraph: Mother appeals the trial court's award of custody of her four minor children to the Tennessee Department of Children's Services based on a finding of dependency and neglect. We affirm. http://www.tba.org/tba_files/TCA/inthematterofdlpc.wpd CECIL JACOBS, ET AL. v. EDWIN UNDERHILL, ET AL. Court:TCA Attorneys: Ricky L. Wood, Parsons, Tennessee, for the appellants, Edwin Underhill and Robbie Jo Underhill. Dana Dye, Centerville, Tennessee, for the appellees, Cecil Jacobs, Gary Jacobs and Linda Hitt. Judge: CAIN First Paragraph: The appellants challenge the trial court's Order commanding them to remove a portion of their patio and garage and any portion of their residence constructed since 1999 which encroaches on the appellees' property. We affirm. http://www.tba.org/tba_files/TCA/jacobscecil.wpd MORRISTOWN SURGERY CENTER, LLC v. TENNESSEE HEALTH FACILITIES COMMISSION, ET AL. Court:TCA Attorneys: Michael D. Brent, W. Davidson Broemel, Melissa Ballengee, Nashville, Tennessee, for the appellant, Morristown Surgery Center, LLC. Paul G. Summers, Attorney General and Reporter; Sara E. Sedgwick, Assistant Attorney General; Sue Ann Sheldon, Assistant Attorney General, for the appellee, Tennessee Health Facilities Commission. Warren L. Gooch, Robert W. Knolton, Knoxville, Tennessee, for the appellee, Associates of the Meridian Health Outpatient Center, LLC. Judge: CAIN First Paragraph: This appeal under the Administrative Procedures Act challenges a chancery court order affirming the dismissal of the Appellant's Petition for Contested Case Review. We affirm http://www.tba.org/tba_files/TCA/morristownsurgery.wpd STATE OF TENNESSEE v. TITUS CHAMPION Court:TCCA Attorneys: Periann S. Houghton, Trenton, Tennessee, for the appellant, Titus Champion. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General; Garry Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: The appellant, Titus Champion, was convicted of robbery pursuant to a bench trial in the Gibson County Circuit Court. The trial court sentenced the appellant as a Range II multiple offender to six years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends that the State did not prove the element of violence as was alleged in the indictment charging the appellant with robbery. Finding the appellant's argument to have merit, we modify his conviction for robbery to a conviction for theft under $500 and remand to the trial court for sentencing. http://www.tba.org/tba_files/TCCA/champ.wpd CARL E. SAINE v. STATE OF TENNESSEE Court:TCCA Attorneys: John H. Parker, II, Memphis, Tennessee, for the appellant, Carl E. Saine. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William E. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: OGLE First Paragraph: On September 1, 1977, the petitioner, Carl E. Saine, was convicted by a jury in the Shelby County Criminal Court of one count of rape and one count of assault with the intent to commit murder in the first degree. He was sentenced to ninety-five years imprisonment for his rape conviction and to not less than six years nor more than twenty-one years imprisonment for his assault conviction. Subsequently, the petitioner filed to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post- conviction court. http://www.tba.org/tba_files/TCCA/sainece.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! 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