TAM-BYTES April 8, 2013 Vol. 16, No.

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2013 CLE CALENDAR Audio Conference Earn one hour of DUAL credit! Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls, 60minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern) Onsite Event Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes * Court of Appeals reverses $3 million jury verdict against employer on retaliation claim when plaintiff failed to submit material evidence showing that decision-maker had knowledge of plaintiffs protected activity at time of alleged adverse job action; * Court of Appeals, in suit to extend judgment, says new 10-year period is tacked on to previous 10 years and begins to run 10 years from original judgment, not date of entry of order granting extension; * Court of Criminal Appeals says appropriate test to be applied in assessing whether expert witness who previously was employed as expert on behalf of defendant later may testify as expert for state on same or substantially similar subject matter in subsequent criminal prosecution of defendant is whether ordinary person knowledgeable of all relevant facts would conclude that allowing expert to switch sides poses substantial risk of disservice to public interest and/or defendants fundamental right to fair trial;

* Court of Criminal Appeals says accuseds lack of expertise or professional capabilities is not factor to be considered by trial court when accused invokes his or her constitutional right to self-representation; * Sixth Circuit reverses district courts denial of defendant school nurses motion for summary judgment, based on qualified immunity, in suit alleging that defendant violated students Fourth Amendment right when she conducted visual examination of 6-year-old female students genital area for medical purposes in response to students complaints of itching and discomfort in area; and * Second successor trial judge grants new trial to one defendant who was convicted of murder in trial presided over by Judge Richard Baumgartner when second successor judge was unable to carry out duty as thirteenth juror because resolution of defendants case involved overriding issue, or primary issue, of witness credibility. COURT OF APPEALS EMPLOYMENT: In case in which plaintiff filed suit against his employer (defendant) asserting several claims alleging discrimination based on race and national origin, plaintiff later filed second suit asserting that he suffered adverse job actions after he filed his charge of discrimination with EEOC and first discrimination suit, plaintiff alleged that adverse job actions included making plaintiff perform tasks that resulted in physical injuries, suits were consolidated, and jury awarded plaintiff $3 million on retaliation claim only, judgment is reversed and case is remanded for entry of order dismissing complaint; plaintiff failed to submit to jury material evidence showing that decision-maker had knowledge of plaintiffs protected activity at time of alleged adverse job action. Ferguson v. Middle Tennessee State University, 3/28/13, WS at Nashville, Kirby, 12 pages.
http://www.tncourts.gov/sites/default/files/fergusonj_opn.pdf

INSURANCE: When insurer provided trucking company (insured) with general liability insurance policy that included MCS-90 endorsement required by Motor Carrier Act of 1980, passenger in insureds tractor made claim against insurer for injuries she sustained when tractor turned over, insurer settled and paid claim even though passenger had not filed complaint or obtained judgment against insured, and insurer filed suit against insured seeking reimbursement for amount it paid, trial court erred in awarding insurer reimbursement; MCS-90 endorsement was not triggered because passenger did not first obtain judgment against insured for its negligence; if passenger had obtained judgment against insured for damages caused by insureds driver, insurer would have been required by endorsement to satisfy passengers judgment and would then have been entitled to seek reimbursement from insured this was because driver was specifically excluded from coverage as driver under policy, and insurer would not have been liable for

any judgment passenger may have obtained against insured in absence of MCS-90 endorsement. Northland Insurance Co. v. Burton, 3/27/13, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/northlandinscoopn.pdf

TAXATION: In case in which decedents estate filed Tennessee inheritance tax return and paid estimated amount of taxes due in 2002, estate was embroiled in litigation, which diminished size of estate, once litigation concluded, estate became entitled to more deductions on its inheritance tax return, estate filed two amended Tennessee inheritance tax returns claiming that it was entitled to substantial tax refunds based on its overpayment of inheritance and estate taxes in 2002, Department of Revenue (Department) paid refunds claimed in estates amended returns plus pittance of interest on refunds, and estate filed suit against Department claiming that it was entitled to additional interest on inheritance and estate tax refunds, chancellor properly granted Department summary judgment; chancellor properly applied 2011 version of TCA 67-8-208(d) in determining interest due on estates tax refunds when estate failed to meet requirements to trigger interest payment under old version of statute because final determination of estates federal estate tax liability was made in 2011, that was year in which estate became entitled to refund under statute, and there was nothing to trigger statute prior to that time; there is no authority to support finding that refund vests when tax overpayment is made estates right to refund accrues when amount of federal estate tax has changed upon final determination; although documentation included in estates first and second amended returns provided Department with much of information necessary to calculate amount of refunds due, these returns were insufficient to verify entitlement to and amount of refunds due to estate, and Department acted properly in measuring amount of interest due from date that it received response from IRS on 9/29/09, and date that estate forwarded to Department federal Estate Tax Closing Document. Estate v. Boote v. Roberts, 3/28/13, WS at Nashville, Kirby, 19 pages.
http://www.tncourts.gov/sites/default/files/bootejoopn.pdf

FAMILY LAW: In case in which husband, during course of parties divorce, was held in contempt on four separate occasions, with his sentences (which totaled 50 days in jail) suspended, and after over 10 years of litigation, wife filed two separate petitions asking that husband be held in criminal contempt, trial court did not abuse discretion in finding husband to be in criminal contempt, imposing five-day sentence for new contempt, revoking suspension of husbands previously-imposed sentences, and ordering husband to serve 55 days in jail; criminal contempt is not considered violation of criminal law, rather it is sui generis, or class unto itself, and suspension of criminal contempt sentence does not constitute probation. Coffey v. Coffey, 3/28/13, ES, Susano, 16 pages.
http://www.tncourts.gov/sites/default/files/coffeyld.pdf

CIVIL PROCEDURE: When judgment was entered in favor of plaintiff on 6/11/90 for $250, award was modified on appeal to $180,000 to be credited against defendants reasonable commission, Tennessee Supreme Court on 12/10/92 affirmed $180,000 award of damages, reversed credit for reasonable commission, and remanded for further proceedings consistent with this holding, trial court on 3/7/96 entered, nunc pro tunc to 12/10/92, judgment consistent with Supreme Courts opinion and mandate awarding plaintiff post-judgment interest in addition to $180,000 in damages, plaintiff filed motion to revive judgment on 5/30/00, trial court entered order reviving judgment on 6/14/00, plaintiffs successor filed motion in 11/10 seeking to extend judgment from 12/10/12 through 12/10/22, and trial court ordered that final judgment with balance of $715,561 as of 4/2/12, together with post-judgment interest, was extended for additional 10 years through 3/7/26, trial court did not err in holding that first 10-year extension began to run 10 years from date of original judgment, instead of 10 years from date of order granting that extension; new 10-year period is tacked on to previous 10 years and does not begin to run from date of entry of order granting extension; trial court erred in not giving proper retroactive effect to nunc pro tunc provisions of its final judgment; given nunc pro tunc effect, original final judgment was effective from 12/10/92 and so original 10 years ran from that date. Cook v. Alley, 4/4/13, ES, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/cookshopn.pdf

CIVIL PROCEDURE: When mother conveyed property to son in 1983 and reserved life estate, son resided on property for years before renting property to others, mother objected in 2008 to tenants occupation and filed suit to enforce her right to possession of property, trial court erred in holding that suit was barred by 10-year statute of limitation; mother retained present possessory interest for her lifetime, and son received future possessory interest; mother merely needed to assert her right as life tenant and obtain declaratory judgment when sons use of property exceeded her permission; such claim is not subject to statute of limitation because life tenant holds property for duration of his or her life; son may prove that he had superior right to property pursuant to other doctrines, namely, adverse possession, but trial court limited its holding to expiration of statute of limitation. Long v. Creekmore, 3/28/13, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/longopn.pdf

GOVERNMENT: Decision by Council of Metropolitan Government of Nashville (Council), which was based solely upon concerns of residents, to disapprove location of waste transfer station, as proposed by Waste Connections of Tennessee (Waste Connections), was not supported by substantial and material evidence, and as such, by definition, decision to disapprove location was arbitrary and capricious;

trial court erred in dismissing petition for writ of certiorari filed by Waste Connections seeking review of Councils action, and case is remanded with instructions for trial court to set aside Councils disapproval of location and to order that application for special exemption be submitted to Board of Zoning Appeals for its consideration. Waste Connections of Tennessee Inc. v. Metropolitan Government of Nashville, 3/27/13, MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/wasteconections_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was not sufficient to convict defendant of first degree premeditated murder when state failed to adduce sufficient proof to establish that defendant killed victim with premeditation even if victims death was inflicted in particularly cruel manner, this circumstance alone is not sufficient to support finding of premeditation but because proof is marginally sufficient to support conviction of second degree murder, defendant may be retried for second degree murder and any appropriate lesser included offenses; evidence was not sufficient to convict defendant of submitting false or fraudulent insurance claim for payment of life insurance proceeds on victims life when review of insurance claim form reveals no false or fraudulent statement by defendant death benefits under policy were not limited to accidental death, and claim form stated that victims cause of death was asphyxiation also with blunt trauma as such, defendants conviction for insurance fraud is reversed and dismissed; defendant is entitled to new trial when trial judge failed to exercise his mandatory duty to act as thirteenth juror; trial judge committed reversible error in failing to exclude forensic pathologist as witness for state; appropriate test to be applied in assessing whether expert witness who previously was employed as expert on behalf of defendant later may testify as expert for state on same or substantially similar subject matter in subsequent criminal prosecution of defendant is whether ordinary person knowledgeable of all relevant facts would conclude that allowing expert to switch sides poses substantial risk of disservice to public interest and/or defendants fundamental right to fair trial. State v. Larkin, 3/28/13, Knoxville, Bivins, 81 pages.
http://www.tncourts.gov/sites/default/files/larkindopn.pdf

CRIMINAL LAW: Reckless endangerment with deadly weapon is not lesser included offense of first degree premeditated murder. State v. Mason, 3/27/13, Jackson, McMullen, Williams concurring in results only, 33 pages.
http://www.tncourts.gov/sites/default/files/masonharrisopn.pdf

EVIDENCE: In aggravated child abuse case, trial judge did not err by excluding evidence that police requested and defendant consented to undergo polygraph examination. State v. Pursell, 3/28/13, Nashville, Tipton, 28 pages.
http://www.tncourts.gov/sites/default/files/pursellmarcienewopn.pdf

CRIMINAL PROCEDURE: Trial court erred in denying defendants request to proceed pro se during his pretrial hearings on charges of aggravated burglary, arson, harassment, and stalking when trial judge based decision on his concern that defendant lacked understanding of substantive and procedural law and that defendant could not represent himself effectively and competently; accuseds lack of expertise or professional capabilities is not factor to be considered by trial court when accused invokes his or her constitutional right to self-representation; because trial court denied defendants request to proceed pro se on improper basis and did not follow proper procedure in assessing whether defendant should be allowed to represent himself, trial courts judgment is reversed, and case is remanded for further proceedings. State v. Hessmer, 3/28/13, Nashville, Tipton, 4 pages.
http://www.tncourts.gov/sites/default/files/hessmer.pdf

CRIMINAL LAW: In case in which defendant was convicted of two counts of aggravated sexual battery in connection with offenses committed against his young granddaughter, because states election of offenses as to Count 2 was inadequate state failed to adduce sufficient proof from any source as to any particular incident of defendant touching victims genital region unaccompanied by penetration when testimony failed to distinguish one incident of non-penetration touching from any other incident, and while state tried to distinguish between over-clothing and under-clothing touching, it was not at all clear that victim understood distinction defendants conviction of aggravated sexual battery on Count 2 is reversed, and case is remanded for further proceedings. State v. Lyle, 3/28/13, Knoxville, Bivins, 27 pages.
http://www.tncourts.gov/sites/default/files/lyledopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of possessing more than .5 gram of cocaine with intent to sell or deliver, trial court did not err in allowing state to impeach defendant with prior conviction for drug dealing when, while defendant did not specifically testify that he had never sold drugs at any point in the past, his claim under oath that he did not sell drugs which was immediately preceded by his comments implying that prosecutor was acting improperly by asking series of questions insinuating that he ever would certainly increased probative value of defendants prior conviction; nothing in TRE 609 requires trial court to wait until after defendant has affirmatively committed

clear and unequivocal perjury before affording state opportunity to respond. State v. Vaughn, 3/28/13, Jackson, Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/vaughnopn_0.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first degree murder and sentenced to death, and post-conviction court subsequently vacated death sentence and granted petitioner new sentencing hearing, postconviction court did not err in denying petitioners claim that he received ineffective assistance of counsel during guilt phase of trial and in denying petitioner any relief from his first degree murder conviction. Nesbit v. State, 3/28/13, Jackson, Woodall, dissent by Tipton, 80 pages.
http://www.tncourts.gov/sites/default/files/nesbitclarenceopn.pdf http://www.tncourts.gov/sites/default/files/nesbitclarencedis.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first degree murder and felony murder in connection with death of his estranged girlfriends 13-year-old daughter and was sentenced to death, post-conviction court properly found that petitioner received effective assistance of counsel at trial. Rice v. State, 3/27/13, Jackson, McMullen, 64 pages.
http://www.tncourts.gov/sites/default/files/ricecharlesopn.pdf

SIXTH CIRCUIT COURT OF APPEALS CONSTITUTIONAL LAW: When defendant, school nurse, conducted visual examination of 6-year-old female students genital area for medical purposes in response to students complaints of itching and discomfort in area, students mother, on behalf of student, alleged that this medical examination violated students Fourth Amendment right to be free form unreasonable searches, district court denied defendants motion for summary judgment, which was based on qualified immunity, finding that visual examination, conducted without consent and in absence of medical emergency, was unreasonable search that violated students Fourth Amendment rights, district court erred in denying defendants motion for summary judgment; law was not clearly established regarding whether medically motivated examination by school nurse exposing students body constitutes search subject to protections of Fourth Amendment. Hearring v. Sliwowski, 3/27/13, Moore, 10 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0077p-06.pdf

TRIAL COURT CRIMINAL PROCEDURE: In case in which three defendants (Cobbins, Davidson, and Thomas) were each convicted of first degree murder in trials presided over by Judge Richard Baumgartner, one defendant received death penalty while two other defendants were sentenced to life without possibility of parole, each defendant filed motion for new trial, but prior to hearing respective motions, Judge Baumgartner resigned from bench after pleading guilty to official misconduct, Judge Jon Kerry Blackwood, who was designated to serve as successor judge, ruled on defendants motions for new trials but was replaced before those rulings became final, and second successor judge was appointed to hear defendants new trial motions, motions for Davidson and Cobbins are denied, but new trial is granted to Thomas solely because second successor judge is unable to carry out courts duty as thirteenth juror; resolution of Thomas case involves overriding issue, or primary issue, of witness credibility. State v. Cobbins, 1/15/13, Knox Criminal, Kurtz, 34 pages.

REVENUE RULINGS TAXATION: Application of Tennessee sales and use tax exemption under TCA 67-6-356 for telecommunications services used by call centers. Department of Revenue Letter Ruling 13-04, 1/30/13, 5 pages.
http://www.tn.gov/revenue/rulings/sales/13-04.pdf

TAXATION: Applicability of Tennessee sales and use tax pollution control credit and Tennessee sales and use tax industrial machinery exemption to city landfill. Department of Revenue Letter Ruling 13-06, 2/25/13, 7 pages.
http://www.tn.gov/revenue/rulings/sales/12-06.pdf

ATTORNEY GENERAL OPINIONS GOVERNMENT: Proposed bill, which would place limited restrictions on ability of press to gather defined information in polling place during any election, i.e., restricts medias use of photographic, electronic monitoring, or other recording devices except under defined circumstances, is defensible from facial constitutional challenge. Attorney General Opinion 13-26, 3/26/13, 4 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-26.pdf

GOVERNMENT: Proposed bill, which would require poll watchers or any other person admitted to polling place during election to be U.S. citizen, is

constitutionally suspect under Equal Protection Clause. Attorney General Opinion 13-29, 3/27/13, 5 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-29.pdf

GOVERNMENT: Proposed bill, which would provide parents of limited number of Tennessee school children attending public schools in bottom 5% in terms of scholastic achievement voluntary choice of utilizing voucher program to attend private school that is subject to state educational requirements, is defensible to facial constitutional challenge. Attorney General Opinion 13-27, 3/26/13, 9 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-27.pdf

If you would like a copy of the full text of any of these opinions, simply click on the link provided or, if no link is provided, you may respond to this e-mail or call us at (615) 661-0248 in order to request a copy. You may also view and download the full text of any state appellate court decision by accessing the states web site by clicking here: http://www.tncourts.gov/