TBALink Opinion-Flash

March 20, 1996 -- Volume #2 -- Number #29

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts and the TN Attorney General.

This Issue:: New Opinons From TSC : 0; New Opinons From TCA : 6; New Opinons From TCCA : 2; New Opinons From AG : Pending

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Click the URL Link at end of each Opinion Paragraph below. This option will allow you to download the original WP 6.0 document.

Jim Moore
TBALink Co-Chief Editor
Opinion-Flash

MARGARET BROWN, 
v.
GARY M. WHITE, RACHEL M. WEBER, KIMBERLY R. ANDERSON, and
VFW POST NO. 3382, and CUMIS INSURANCE SOCIETY, and STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Court:TCA

LARRY V. ROBERTS, Kingsport, for Appellant Cumis Insurance
Society

JACK M. VAUGHN, of MILLER & VAUGHN, Kingsport, for Appellee
State Farm Mutual Automobile Insurance Company
                        
First Paragraph:

This case involves a question of uninsured motorist
insurance coverage.  It appears to be one of first
impression in the appellate courts of this state.  We are
asked to decide if the plaintiff Margaret Brown was
"entering" the automobile of her friend, the defendant
Kimberly R. Anderson, when she was struck by an uninsured
vehicle.  If she was, she is entitled to uninsured motorist
coverage as an "insured" under the automobile insurance
policy issued to Anderson by State Farm Mutual Automobile
Insurance Company (State Farm).  The trial judge, in a
non-jury hearing, held that there was no coverage.  He found
that Brown was not entering the Anderson vehicle at the
time of the accident.  Therefore, he concluded that State
Farm had no obligations to Brown under the uninsured
motorist feature of that companys policy.  Cumis Insurance
Society, Brown's uninsured motorist carrier, appeals the
trial courts judgment.  It contends that Brown was
entering and thus occupying her friend's vehicle at the
time of the collision, and that she was therefore an
insured under the State Farm policy.  We affirm the
judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/CUMIS.OPN.WP6


JAMES CECIL HERRON v. SONJA MARIE HERRON 

Court:TCA

MARK H. TOOHEY, OF KINGSPORT, TENNESSEE, FOR APPELLANT 

KENDALL T. LAWSON, OF ROGERSVILLE, TENNESSEE, FOR APPELLEE
                        
First Paragraph:

The Defendant has appealed from a judgment awarding the
custody of the parties' two minor children to the Plaintiff
in their divorce proceeding.  We affirm.

URL:http://www.tba.org/tba_files/TCA/HERRONJC.OPN.WP6


KACY L. HIGGINS,    
v. 
BLOUNT LAW FIRM, JAMES E. BLOUNT, III, JOSEPH M. SPARKMAN,
JR., JOHN APPMAN,

Court:TCA

ABBY RUBENFELD
Nashville, Tennessee

MARK BURNETTE
JOHN W. WALKER, P.A.
Little Rock, Arkansas
Attorneys for Appellant

JAMES E. BLOUNT, III
BLOUNT LAW FIRM
Memphis, Tennessee

JOSEPH M. SPARKMAN, JR.
Southaven, Mississippi
Attorneys for Appellees Blount Law Firm, James E. Blount,
III and Joseph M. Sparkman

RICHARD GLASSMAN
JAMES F. HORNER
GLASSMAN, JETER, EDWARDS & WADE, P.C.
Memphis, Tennessee
Attorney for Appellee John Appman
                       
First Paragraph:

Kacy L. Higgins ("plaintiff") filed this legal malpractice
against his former attorneys, James E. Blount, III, Joseph
M. Sparkman, and John Appman ("defendants"), seeking damages
caused by defendants' alleged negligence during their
representation of plaintiff in a medical malpractice suit.
The trial court granted summary judgment in favor of
defendants because plaintiff did not file an expert
affidavit in opposition to defendants' motion for summary
judgment.   Plaintiff contends on appeal that the entry of
summary judgment was improper because defendants' affidavit
in support of their motion was insufficient.  For the
reasons hereafter stated, we affirm the judgment of the
trial co

URL:http://www.tba.org/tba_files/TCA/HIGGINSK.OPN.WP6


MELANIE ELAINE KELLEY, v. STEPHEN LEON KELLEY,   

Court:TCA

DON W. POOLE, Poole, Lawrence, Thornbury, Stanley & Morgan,
Chattanooga, for Appellant.

DAVID HAINES ROTROFF, Chattanooga, for Appellee.
                      
First Paragraph:

This appeal springs from a judgment in a divorce action
which was entered in the Chancery Court for Hamilton County.
 The appellant challenges only that part of the trial
court's judgment making a division of marital property.  We
affirm the judgment of the trial court.

URL:http://www.tba.org/tba_files/TCA/KELLEYME.OPN.WP6


KENMAN G. LAY, d/b/a RETAIL DEVELOPMENT GROUP,
v.
FAIRFIELD DEVELOPMENT, a Tennessee General Partnership,
MARGOT EVERHART, Partner, ANN M. STAFFORD, Partner, and MAX
EVERHART, Individually,
                               
Court:TCA

RANDY SELLERS, Cleveland, for Appellants.

D. MITCHELL BRYANT, Jenne, Scott & Bryant, Cleveland, for
Appellee.
                      
First Paragraph:

This is an action to collect a real estate commission.  The
trial court resolved the issues in favor of the plaintiff
and the defendants appealed.  We reverse the judgment of the
trial court and dismiss the case.

URL:http://www.tba.org/tba_files/TCA/LAYKEN.OPN.WP6


WAYNE LEE and C. EDDIE SHOFFNER 
v.
ROBERT TUTTLE, JAMES K. LOOPE, ELEANOR Y. BREEDING, STEWART
COLLINGSWORTH, BETTY MANNING, BILLY RAY CHEEK, and BRUCE
SEAL
                           
Court:TCA

MICHAEL G. HATMAKER, OF JACKSBORO, TENNESSEE, FOR APPELLANT
WAYNE LEE

MARK C. TRAVIS, WITH WIMBERLY & LAWSON, OF MORRISTOWN,
TENNESSEE, FOR APPELLANT C. EDDIE SHOFFNER

A. BENJAMIN STRAND, JR., WITH STRAND AND GODDARD, OF
DANDRIDGE, TENNESSEE, FOR APPELLEES BILLY RAY CHEEK AND
BRUCE SEAL
                  
First Paragraph:

The Plaintiffs have appealed from a decree at the close of
their proof dismissing their complaint in an election
contest.  We reverse and remand.

URL:http://www.tba.org/tba_files/TCA/LEEWAYN.OPN.WP6


STATE OF TENNESSEE, v. MIKE BOOT PARKER,

Court:TCCA

FOR THE APPELLANT:          FOR THE APPELLEE:

Francis D. Gibson, III      Charles W. Burson
Attorney at Law             Attorney General & Reporter

                            Sharon S. Selby
                            Assistant Attorney General

                            Randall E. Nichols
                            District Attorney General

                            Robert L. Jolley, Jr.
                            Andrew Jackson, VI
                            Asst District Attorney Generals

First Paragraph:

The appellant, Mike Boot Parker, was convicted of
facilitation of aggravated robbery, a Class C felony, by a
jury of his peers.  The trial court found that the appellant
was a standard offender and imposed a Range I sentence of
confinement for five (5) years in the Department of
Correction.

URL:http://www.tba.org/tba_files/TCCA/PARKERMB.OPN.WP6


STATE OF TENNESSEE, v. CHAD DOUGLAS POOLE,
OPINION ON PETITION TO REHEAR

Court:TCCA

Attorneys:N/A
                        
First Paragraph:

The State of Tennessee has filed a petition to rehear
requesting that this court reconsider our opinion on the
grounds that we have misapprehended a material proposition
of law.  In our opinion, we held that for purposes of
sentence enhancement, proof that the victim of the robbery
was seventy-one years old was not sufficient in and of
itself to show particular vulnerability.  We stated that
the Tennessee Supreme Court has held that the vulnerability
enhancement relates more to the natural physical and mental
limitations of the victim than merely to the victims age. 
We relied on State v. Adams, 864 S.W.2d 31 (Tenn. 1993).

URL:http://www.tba.org/tba_files/TCCA/POOLE.REH.WP6

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