June 22, 2001
Volume 7 — Number 114

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

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
06 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



Todd J. Moody, Knoxville, Tennessee, for the appellant, Shirley Irene

J. William Coley and B. Adam Newsome, Knoxville, Tennessee, for the
appellee, Farmers Insurance Exchange.


First Paragraph:

We are asked to decide whether the Supreme Court's decision in the
case of Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000),
is applicable to a case in which a plaintiff seeks to recover under
the uninsured motorist provisions of its policy based upon the alleged
negligence of an unknown motorist, the existence of whom is first
asserted by a named defendant.  In the instant case, a vehicle driven
by the plaintiff Shirley Irene Breeding was struck by a vehicle driven
by the defendant Robert Lewis Edwards and owned by the defendant
Johnston Coca Cola Bottling Group, Inc. ("Johnston").  She filed a
complaint against these defendants within the period of the statute of
limitations and secured the service of process upon her uninsured
motorist ("UM") carrier, the appellee Farmers Insurance Exchange
("Farmers").  Outside the period of the statute of limitations, the
defendants amended their answer to allege that an unknown motorist
caused or contributed to the accident.  Within 90 days, Breeding
amended her complaint to add John Doe, i.e., the unknown driver, as a
party defendant.  Farmers moved to dismiss the claim against it.  It
relied on Brown, a slip and fall case.  The trial court agreed with
Farmers and dismissed Breeding's claim.  Breeding appeals, asserting,
inter alia, that Brown does not apply to the instant case.  We


MARY COSTA, SUE HENARD, and VICTORIA S. McCULLOCH v. JAMES L. CLAYTON, LaRUE HOMEOWNERS' ASSOCIATION, INC., BARRY BRADLEY, RICHARD LACY, and HARRY P. MONTGOMERY Court:TCA Attorneys: Arthur G. Seymour, Jr., and Benjamin C. Mullins, Knoxville, Tennessee, for Appellant, LaRue Home Owners' Association. James L. Clayton, pro se. Robert L. Crossley, Knoxville, Tennessee, for Appellees. Judge: FRANKS First Paragraph: Plaintiffs' action to invalidate an agreement between the defendants to grant an easement as consideration for land was found to be meritorious by the Trial Judge, and plaintiffs were granted summary judgment. On appeal, we affirm. http://www.tba.org/tba_files/TCA/costam.wpd
TERRY HOWARD v. JACK MORGAN, et al. Court:TCA Attorneys: Terry Howard, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General & Reporter, Abigail Turner, Assistant Attorney General, for appellees, Jack Morgan, et al. Judge: COTTRELL First Paragraph: In this case, a prisoner appeals from dismissal of his lawsuit on the basis that the allegation of poverty in his affidavit of indigency was false. Because the record includes a certified copy of the prisoner's trust account statement showing a balance from $1,100 to over $1,200, we affirm. http://www.tba.org/tba_files/TCA/howardt.wpd
AUDIE LOWE, et al. v. BILL GOAD, et al. Court:TCA Attorneys: Stephen A. Marcum, Huntsville, Tennessee, for the Appellants, Audie Lowe, Hilda Lowe, and Sheila Mills. Johnny V. Dunaway, LaFollette, Tennessee, for the Appellees, Bill Goad, Mattie Goad, Eugene Olmstead and Mattie Olmstead. Judge: SWINEY First Paragraph: Audie Lowe, Hilda Lowe, and Sheilda Mills ("Plaintiffs") brought this boundary line suit against members of their family, Bill Goad, Mattie Goad, Eugene Olmstead, and Mae Olmstead ("Defendants"). Plaintiffs allege their predecessor-in-title, Arlie Overton, had an agreement with Defendants' predecessor-in-title, Sherman Overton, that a fence ("Fence") would serve as the boundary line. Plaintiffs' deed does not include the disputed area up to the fence. After a trial, the Trial Court dismissed Plaintiffs' complaint, holding that the Fence was not the boundary line by agreement or acquiescence. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/lowea.wpd
HARRY M. PACK v. TINA LEWIN PONAK Court:TCA Attorneys: Jerre Michael Hood, Winchester, Tennessee, for appellant, Tina Lewin Ponak. Johnny D. Hill, Jr., Fayetteville, Tennessee, for appellee, Harry M. Pack Judge: CANTRELL First Paragraph: The Lincoln County Circuit Court granted the appellee's motion for summary judgment allowing the sale of real property held as joint tenants with the right of survivorship. We find, however, that whether there is an agreement not to partition the property is a disputed question of fact. We reverse the trial court and remand for further proceedings in accordance with this opinion. http://www.tba.org/tba_files/TCA/packhm.wpd
JONATHAN DAVID WILSON v. SANDRA KAY WILSON Court:TCA Attorneys: H. Allen Bray, Maryville, Tennessee, for the Appellant, Sandra Kay Wilson. Martha Meares and Anne M. Stair, Maryville, Tennessee, for the Appellee, Jonathan David Wilson. Judge: GODDARD First Paragraph: This appeal from the Loudon County General Sessions Court questions whether the Trial Court erred in awarding a change of residential custody from Appellant, Sandra Kay Wilson to Appellee, Jonathan David Wilson. Ms. Wilson appeals the decision of the General Sessions Court. We affirm the decision of the Trial Court and remand for such further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Ms. Sandra Kay Wilson and her surety. http://www.tba.org/tba_files/TCA/wilsonjon.wpd

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