April 24, 2001 Volume 7 — Number 075 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 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 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   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink IN RE: Amendment to Supreme Court Rule 25, Section 13.01 Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/rule25sec13.wpd MARGARET AKINS v. PAULINE ANDERSON CLARK, et al. Court:TCA Attorneys: Hugh W. Morgan and Amanda M. Belew, Knoxville, Tennessee, Robert J. Pennington, Madisonville, Tennessee, and Larry Dean Cantrell, Athens, Tennessee, for the Appellants, Hiwassee College, Monroe County Senior Citizens and Friends, First United Methodist Church of Madisonville, Harrison-Chilhowee Baptist Academy, Charlene Notgrass Mischlich, Roxie Anna Notgrass Ferguson, Vicki Mischlich Forester, Steve Mischlich, Sherri Mischlich Forester, Elizabeth Forester, a minor, by next friend Vicki Mischlich Forester, Catherine Forester, a minor, by next friend Vicki Mischlich Forester, James Neal Notgrass Carter, Cory Talmadge Forester, a minor, by next friend Sherri Mischlich Forester, and Nicholas Ryan Forester, a minor, by next friend Vicki Mischlich Forester. Marcia M. McMurray, Cleveland, Tennessee, and David F. Harrod, Athens, Tennessee, for the Appellee, Margaret Akins, as Personal Representative of the Estate of Josephine A. Notgrass, and Individually. Judge: SWINEY First Paragraph: Margaret Akins ("Plaintiff") stood to inherit a farm and stock from her close friend, Josephine A. Notgrass ("Notgrass"), through specific bequests ("Bequests") in Notgrass' will. After Notgrass' will ("Will") was executed, Notgrass and Plaintiff formed a limited partnership ("Limited Partnership") in an effort to save estate taxes. Notgrass held a substantially higher interest in the Limited Partnership than Plaintiff and was the sole general partner. Notgrass transferred to the Limited Partnership the farm and stock which were the subject of the Bequests. After Notgrass' death, Plaintiff, who also is the personal representative of Notgrass' estate, filed a declaratory judgment action, seeking an order from the Trial Court regarding how to distribute the assets of the Limited Partnership. The Trial Court held that the transfer of the farm and stock to the Limited Partnership did not materially change or alter those assets, and, therefore, the transfer did not result in an ademption by extinction of the Bequests. As a result, the Trial Court held that Plaintiff was entitled to inherit the farm and stock pursuant to the Bequests. Fourteen of the twenty one named residuary beneficiaries ("Defendants") appeal. We reverse. http://www.tba.org/tba_files/TCA/akinsm.wpd BARBARA J. BARREDO v. ROBERT ORR-SYSCO FOOD SERVICES, LLC Court:TCA Attorneys: Broderick Young, Knoxville, Tennessee, for the Appellant, Barbara J. Barredo. John E. Winters, Knoxville, Tennessee, for the Appellee, Robert Orr-Sysco Food Services, LLC. Judge: SWINEY First Paragraph: The Trial Court granted summary judgment to Robert Orr-Sysco Food Services, LLC ("Defendant"). Barbara J. Barredo ("Plaintiff") filed a personal injury action against Defendant, claiming that Defendant's delivery driver improperly stacked a box containing six gallon-size Clorox bleach bottles during a delivery to Children's Hospital. While Plaintiff, an employee of Children's Hospital, was checking in Defendant's delivery, the box of Clorox fell from the top of a stack made by Defendant's delivery driver. Plaintiff was able to catch the box, but claims that she sustained physical injuries as a result. Defendant filed a Motion for Summary Judgment, arguing that the undisputed facts do not show Defendant's delivery driver was negligent and that the box could have fallen due to some intervening cause. The Trial Court granted Defendant's motion. Plaintiff appeals. We reverse. http://www.tba.org/tba_files/TCA/barredobjj.wpd RANDALL B. COWARD v. BLOUNT COUNTY, TENNESSEE Court:TCA Attorneys: Kenneth K. Kennedy, Knoxville, Tennessee, for the Appellant Randall B. Coward. Norman H. Newton and Stephen S. Ogle, Maryville, Tennessee for the Appellee Blount County, Tennessee. Judge: SWINEY First Paragraph: Randall B. Coward ("Plaintiff") was incarcerated in the Blount County jail after being charged with DUI. Plaintiff claims he was sitting on the bed in his cell when the mattress shifted causing him to fall to the floor, landing on his head. Plaintiff says there was a full size mattress on a twin size frame with the mattress extending over the frame by six to eight inches. Plaintiff sued alleging negligence and/or gross negligence on the part of Blount County ("Defendant"). Defendant filed a summary judgment motion and attached the affidavits of the Sheriff of Blount County and a deputy sheriff. Both of these individuals swear that there were two styles of mattresses in the jail, and both styles fit the bed frames. In response to the summary judgment motion, Plaintiff filed his own affidavit which stated that the mattress extended over the frame by six to eight inches and was a full size mattress on a twin size frame. The Trial Court granted Defendant's summary judgment motion. We conclude there is a genuine issue of material fact, and, therefore, vacate the judgment. http://www.tba.org/tba_files/TCA/cowardrb.wpd VULCAN MATERIALS COMPANY v. GAMBLE CONSTRUCTION CO., INC., et al. Court:TCA Attorneys: F. Scott LeRoy and M. Andrew Pippenger, Chattanooga, Tennessee, for the appellant, Vulcan Materials Company. Douglas M. Campbell, Chattanooga, Tennessee, for the appellee, Girls' Preparatory School. Judge: SUSANO First Paragraph: In this action to enforce a materialman's lien, the trial court granted summary judgment to the owner of the property because the materialman delivered the notice of nonpayment to the owner by hand rather than by "registered or certified mail, return receipt requested" as required by T.C.A. S 66-11- 145 (Supp. 2000). We affirm. http://www.tba.org/tba_files/TCA/vulcanmaterials.wpd PLEASE FORWARD THIS E-MAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! Would you like to receive the TBALink Opinion Flash free each day by e-mail? Anyone, whether a TBA member or not, is welcome to subscribe ... it's free! For the Plain Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE 3) Leave the body of the message blank For the HTML Text Version: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: SUBSCRIBE HTML 3) Leave the body of the message blank UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! To STOP receiving TBALink Opinion-Flash: 1) Send an e-mail message to: Opinion-Flash@tba.org 2) In the SUBJECT of the message type: UNSUBSCRIBE 3) Leave the body of the message blank © Copyright 2001 Tennessee Bar Association