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   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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink SHIRLEY IRENE BREEDING v. ROBERT LEWIS EDWARDS, et al. Court:TCA Attorneys: Todd J. Moody, Knoxville, Tennessee, for the appellant, Shirley Irene Breeding. J. William Coley and B. Adam Newsome, Knoxville, Tennessee, for the appellee, Farmers Insurance Exchange. Judge: SUSANO 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 reverse. http://www.tba.org/tba_files/TCA/breedingsi.wpd 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 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