Opinion Flash

December 16, 2003
Volume 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):
01 New Opinion(s) from the Tennessee Supreme Court
02 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
02 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


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

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