TAM-BYTES July 1, 2013 Vol. 16, No.

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2013 TAM CLE CALENDAR Audio Conferences Tennessee Conservatorship Laws: What Attorneys Must Know About 2013 Changes, 60-minute webinar presented by Rebecca Blair, Brentwood attorney, on Thursday, July 11 at 2 p.m. (Central), 3 p.m. (Eastern). Business Entity Laws in Tennessee: What Every Litigator Must Know , 60minute webinar presented by Richard Spore, Memphis attorney, on Thursday, August 8 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Event TENNESSEE REAL ESTATE LAW CONFERENCE, Friday, October 4 in NASHVILLE at the Nashville School of Law. *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Joshua R. Denton, Bass, Berry & Sims PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate

IN THIS WEEKS TAM-Bytes Supreme Court clarifies that statute of repose is affirmative defense that is generally waived if not timely raised; Court of Appeals says TCA 29-26-121, which requires pre-suit notice to potential defendants in health care liability suit, does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs inadvertent failure to file with second complaint filed after nonsuit proof of service of pre-suit notices does not warrant dismissal with prejudice;

Court of Appeals, in ruling trial court did not abuse discretion in allowing defendants expert to testify regarding standard of care in health care liability case, reiterates that required familiarity with medical community can be established by familiarity with pertinent statistical information, discussions with knowledgeable medical care providers, or visiting community or hospital; In suit pursuant to Governmental Tort Liability Act in which plaintiff alleged that chair with caster wheels constituted dangerous condition because it was on uncarpeted, tile floor, Court of Appeals affirms trial courts finding that defendant Metropolitan Government of Nashville did not have notice of any dangerous condition with sufficient time to take corrective action; Court of Appeals holds that Governmental Tort Liability Act applies to claims brought against municipality pursuant to Tennessee Human Rights Act, thereby requiring claim to be tried in circuit court without intervention of jury; Court of Appeals says that while factual circumstances surrounding grant or denial of Social Security disability benefits may be considered by trial court in reaching determination of whether spouse is disabled, denial of this type of benefit is not, ipso facto, proof that spouse is not disabled for purposes of alimony; Court of Appeals holds trial court erred in enforcing alimony provisions of parties prenuptial agreement when enforcement of provisions limiting and waiving alimony in event of divorce would likely render wife public charge given fact that wifes diagnosis with rare and potentially life-threatening disease shortly after parties marriage was unforeseen and unanticipated circumstance; Court of Criminal Appeals says fact that offense of employing firearm during dangerous felony under TCA 39-17-1324 cannot be utilized with form of robbery as underlying dangerous felony does not preclude its application in case where robbery is one of many indicted criminal offense but is not relied upon as underlying dangerous felony for purposes of firearms statute; Court of Criminal Appeals holds trial counsel was ineffective in failing to adduce expert proof about trigger mechanism in rifle and in failing to adduce, as substantive evidence, sergeants pretrial statements that rifle had fired while he was handling it and while his hands were not near trigger; General Assembly revises provisions related to trusts and duties and powers of trustees and fiduciaries; and General Assembly reviews provisions relative to court appointed conservators and guardians. SUPREME COURT CIVIL PROCEDURE: Statute of repose is affirmative defense that is generally waived if not timely raised; statute of repose was affirmative defense under TRCP

8.03 even before its explicit listing in 2006. Pratcher v. Methodist Healthcare Memphis Hospitals, 6/28/13, Jackson, Lee, dissent by Koch, 4-1, 20 pages.
http://www.tncourts.gov/sites/default/files/pratchereddie.opn_1.pdf http://www.tncourts.gov/sites/default/files/pratchereddie.dis_.pdf

COURT OF APPEALS TORTS: In health care liability case in which plaintiffs timely filed complaint after properly sending pre-suit notices to potential defendants as required by TCA 29-26121(a), after nonsuiting first suit, plaintiff timely filed second complaint in which they alleged same cause of action against same defendants, and second complaint alleged compliance with TCA 29-26-121(a), citing notices already properly sent before first complaint was filed, trial court erred in dismissing second complaint with prejudice based upon trial courts determination that plaintiffs failed to satisfy notice requirement of TCA 29-26-121(a); plaintiffs complied with TCA 29-26-121(a)s notice requirement by giving written notice of their potential health care liability claim to each defendant at least 60 days prior to filing of their first complaint; TCA 29-26-121 does not mandate dismissal with prejudice for noncompliance with its terms, and plaintiffs inadvertent failure to file with second complaint proof of their service of subject notices does not warrant dismissal with prejudice. Foster v. Chiles, 6/27/13, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/fosterse.pdf

TORTS: In health care liability case, trial court did not abuse discretion in allowing defendants expert, who worked at Summit Medical Center in Hermitage, to testify regarding standard of care at Emerald Hodgson Hospital in Sewanee; to satisfy locality rule, expert witness must demonstrate only some familiarity or a modicum of familiarity with medical community, and required level of familiarity can be established by familiarity with pertinent statistical information, discussions with knowledgeable medical care providers, or visiting community or hospital. Ray v. Southern Tennessee Medical Center LLC, 6/25/13, MS, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/rayw_opn.pdf

TORTS: In suit pursuant to Governmental Tort Liability Act in which plaintiff, employee of Metropolitan Police Department who fell in break room while attempting to sit in chair, alleged that chair with caster wheels constituted dangerous condition because it was on uncarpeted, tile floor, evidence did not preponderate against trial courts finding that no dangerous condition existed; lieutenants email to his super iors informing them that wheels on new chairs might be causing problem with everybody slipping and sliding, did not prove that Metro had knowledge prior to plaintiffs fall; assuming arguendo that plaintiff proved that chairs in combination with tile floor

constituted dangerous condition, evidence did not preponderate against trial courts finding that Metro did not have actual or constructive notice of dangerous condition with sufficient time to take corrective action or to warn of condition. Butler v. Metropolitan Government of Nashville, 6/21/13, MS, Clement, 5 pages.
http://www.tncourts.gov/sites/default/files/butlers._opn.pdf

TORTS: In case in which plaintiff, developer seeking rezoning of certain real property, filed suit against Chattanooga City Councilman (defendant) alleging that, in two separate incidents, defendant had defamed him by accusing him of offering bribe to influence defendants vote on rezoning matter, trial court properly granted defendants motion for judgment on pleadings; defendants statements to fellow council members regarding plaintiffs alleged effort to bribe him fell within scope of his legislative function and are protected by legislative privilege; defendants statements at deli regarding plaintiffs alleged bribe was communication preliminary to proposed litigation and fell within litigation privilege. Issa v. Benson, 6/24/13, ES, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/issabopn.pdf

TORTS: In case in which plaintiff, operator of restoration company, alleged that defendants told several neighbors in subdivision that plaintiffs work was substandard, trial court erred in dismissing defamation claim for failure to state claim; trial court erred in holding that plaintiff had not made short and plain statement of facts alleging that defendants libeled or slandered him as defendants were able to discern from amended complaint both substance of alleged defamatory utterance as well as when it allegedly occurred and to whom it was published. Burt v. MacTavish, 6/21/13, ES, Frierson, 9 pages.
http://www.tncourts.gov/sites/default/files/burt.pdf

EMPLOYMENT: When, after discharge as Chief of Police of Red Bank, plaintiff filed suit against Red Bank pursuant to Tennessee Human Rights Act (THRA) and Tennessee Public Protection Act (TPPA), plaintiff requested jury trial on both claims, Red Bank filed motion to transfer to circuit court and to proceed without jury pursuant to Tennessee Governmental Tort Liability Act (GTLA), and trial court granted Red Banks request to transfer case and to proceed without jury on TPPA claim, but upheld plaintiffs jury request as it pertained to THRA claim, trial court erred in holding that GTLA did not preclude jury trial on THRA claim; GTLA applies to claims brought against municipality pursuant to THRA, and hence, that claim must also be tried without jury. Sneed v. City of Red Bank, 6/27/13, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/sneedopn.pdf

COMMERCIAL LAW: When client originally signed contingency fee contract with attorney in wrongful foreclosure case, attorney later withdrew from case, client hired new law firm to represent him and subsequently prevailed following jury trial, and attorney filed suit alleging that he was entitled to recover his original contingency fee because clients behavior forced him to withdraw from representation, trial court properly limited attorneys recovery of fees pursuant to quantum meruit; while attorneys contribution by his representation was admittedly limited and of short duration, attorneys services were of some value to client since client may not have filed timely claim against creditor without attorneys assistance. Miltier v. Bank of America, 6/26/13, ES, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/miltieropn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision to designate mother as primary residential parent of parties 1-year-old daughter when father, who offers safer, more stable home environment for child and has maintained financial stability, reliable employment, and adequate housing, was comparatively more fit parent for child than mother who moved with child into home with her married paramour where she allowed child to sleep on mattress sitting on bedroom floor, with no rails on bed, had sexual relationships with at least five other men during her marriage to father, and had tendency to be insensitive or volatile and was apparently unable to restrain her temper, even in presence of her two young children (her 1-year-old daughter and her 10-year-old son from another relationship). Ward v. Ward, 6/20/13, WS at Nashville, Kirby, 27 pages.
http://www.tncourts.gov/sites/default/files/wardtd_opn.pdf

FAMILY LAW: In case in which parties were married for approximately 30 years, trial court properly awarded wife $850 per month as alimony in futuro based upon wifes health issues, her level of education, her employment history, and her past earnings 47-year-old wife has suffered from diagnosed schizophrenia and anxiety disorder, for which she has been hospitalized at least twice, and wife testified that although she can do some work, she has no stamina and is only able to work one hour and sit 30 [minutes] and work another hour, and that because of neuropathy and cramping in her hands, she cannot do job for which she is trained, i.e., beautician; mere denial of Social Security benefits to wife, without evidence that denial was based on wifes lack of impairment, is insufficient to foreclose award of alimony in futuro; while factual circumstances surrounding grant or denial of Social Security disability benefits may be considered by trial court in reaching determination of whether spouse is disabled, denial of this type of benefit is not, ipso facto, proof that spouse is not disabled for purposes of alimony. Parrish v. Parrish, 6/21/13, WS, Stafford, 22 pages.
http://www.tncourts.gov/sites/default/files/parrishmopn.pdf

FAMILY LAW: In case in which parties never married but had child together, father was in military and was away most of time, mother initially permitted fathers parents (grandparents) to have liberal visitation with child, after mother married and had children with her new husband, she limited grandparents visitation with child, but did not end it, and grandparents filed petition for court-ordered visitation pursuant to Grandparent Visitation Statute, trial court erred in essentially placing grandparents in stead of father; Grandparent Visitation Statute is not applicable because there was no proof that mother opposed grandparents visitation before grandparents filed their petition for court-ordered grandparent visitation; grandparents relationship with child was not severed prior to petition for visitation being filed when mother merely placed reasonable limitations on grandparents visits, which was well within her purview as fit parent. Uselton v. Walton, 6/21/13, WS at Nashville, Kirby, dissent by Highers, 26 pages.
http://www.tncourts.gov/sites/default/files/useltonkl_opn.pdf http://www.tncourts.gov/sites/default/files/useltonk.l._opn.dissent.pdf

FAMILY LAW: Trial court erred in enforcing alimony provisions of parties prenuptial agreement when enforcement of provisions limiting and waiving alimony in event of divorce would likely render wife public charge in light of fact that wife, who is in her mid-30s, had been diagnosed with autoimmune neutropenia, rare and potentially life-threatening disease, shortly after parties marriage; onset of wifes medical condition came after parties had signed prenuptial agreement and after they had been married, and was, thus, unforeseen and unanticipated circumstance; trial court did not abuse discretion in ordering husband to pay wife $16,000 resulting from husbands breach of prenuptial agreement by failing to fund retirement account in amount of $4,000 per year during marriage; trial courts award to wife of 67 months of health insurance is affirmed; case is remanded for trial court to consider anew wifes request for alimony and to set her attorney fees on appeal. ODaniel v. ODaniel, 6/26/13, ES, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/odanielsee.pdf

GOVERNMENT: When Metropolitan Nashville Council (Council) adopted series of three ordinances that created new zoning classification called Specific Planning (SP), rezoned over 700 parcels of property to SP zoning, and amended permitted uses in SP zones to exclude certain types of financial services, specifically check cashing services not part of bank, and plaintiffs, who owned property on which that type of service was conducted, filed declaratory judgment action challenging three ordinances, trial court erred in dismissing plaintiffs action on basis that suit had to be brought as common law writ of certiorari action; enactment of ordinances was legislative act by Council and, therefore subject to judicial scrutiny through action for declaratory judgment; ordinance rezoning 700 parcels was invalid because it was

not consistent with enabling ordinance creating SP classification. Brown v. Metropolitan Government of Nashville, 6/21/13, MS, Cottrell, 14 pages.
http://www.tncourts.gov/sites/default/files/brownc._opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of six counts of premeditated first degree murder and three counts of attempted first degree murder in connection with murders of his brother, two of his brother s sons, his brothers fiance, and two other individuals; evidence supported imposition of death penalty for each of six first degree murder convictions. State v. Dotson, 6/25/13, Jackson, Glenn, 105 pages.
http://www.tncourts.gov/sites/default/files/dotsonjessieopn.pdf

CRIMINAL LAW: Trial judge erred in failing to instruct jury on accomplice testimony when there was evidence from which jury could have inferred that two individuals (Miller and Sangster) were defendants accomplices, but error was harmless when state presented sufficient evidence to corroborate Millers and Sangsters testimony if jury found them to be accomplices; defendants conviction for especially aggravated burglary is modified to aggravated burglary when jury convicted defendant in Count 2 of indictment for felony murder of Bradford and in Count 3 for especially aggravated burglary, in which Bradford was also named victim, but defendant cannot be convicted of especially aggravated burglary and felony murder when serious bodily injury of victim was element of both offenses. State v. Gibbs, 6/26/13, Jackson, Thomas, 7 pages.
http://www.tncourts.gov/sites/default/files/gibbsmichaelallenopn.pdf

CRIMINAL LAW: Fact that offense of employing firearm during dangerous felony under TCA 39-17-1324 cannot be utilized with form of robbery as underlying dangerous felony does not preclude its application in case where robbery is one of many indicted criminal offense but is not relied upon as underlying dangerous felony for purposes of firearms statute; TCA 39-17-1324 may be applied to lesser included offenses; TCA 39-17-1324(c) permits state to elect to indict defendant for lesser included offense of criminal offense that would otherwise be ineligible as dangerous felony under TCA 39-17-1324 so that state can also charge violation of this statute. State v. Swift, 6/24/13, Jackson, Page, 16 pages.
http://www.tncourts.gov/sites/default/files/swiftdarquan.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of especially aggravated robbery, or any of lesser included offenses pertaining to robbery, when state failed to establish that defendant knowingly, voluntarily, and with common

intent joined with principal offender in commission of robbery, but evidence was sufficient to convict defendant of aggravated assault when jury had sufficient evidence before it to find that defendant caused injury to victim while using deadly weapon; defendants especially aggravated robbery conviction is modified to one of aggravated assault. State v. Grandberry, 6/21/13, Jackson, Bivins, partial dissent by Williams, 15 pages.
http://www.tncourts.gov/sites/default/files/grandberryaopn.pdf http://www.tncourts.gov/sites/default/files/grandberrydissent.pdf

CRIMINAL SENTENCING: Trial court erred in allowing defendant to choose between two sentences when, under sentencing act, duty to sentence defendant cannot be delegated; consecutive alignment of split confinement sentences resulting in confinement period of over one year runs afoul of TCA 40-35-306(a). State v. Benjamin, 6/26/13, Knoxville, Ogle, 7 pages.
http://www.tncourts.gov/sites/default/files/benjaminalanrobertopn.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first degree murder and sentenced to death, his conviction and sentence were both affirmed on direct appeal, and his petition for post-conviction relief was denied, post-conviction court properly denied petitioners motion to reopen post -conviction proceedings based on petitioners argument that he was intellectually disabled and thus ineligible to be sentenced to death; petitioner failed to establish criteria for intellectual disability set forth in TCA 39-13-203(a). Porterfield v. State, 6/20/13, Jackson, Williams, 31 pages.
http://www.tncourts.gov/sites/default/files/porterfieldrevisedopn.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first degree premeditated murder and sentenced to life imprisonment, trial counsel was ineffective in failing to adduce expert proof about trigger mechanism in rifle and in failing to adduce, as substantive evidence, sergeants pretrial statements that rifle had fired while he was handling it and while his hands were not near trigger; had trial counsel put on expert proof about trigger mechanism, Remington Common Fire Control, and had trial counsel elicited admissible substantive evidence about sergeants initial explanations of how he came to be shot by rifle, it is reasonably likely that jury would have accredited petitioners version of events and convicted him of lesser degree of homicide; petitioner is entitled to post-conviction relief in form of new trial. Kendrick v. State, 6/27/13, Knoxville, Bivins, 23 pages.
http://www.tncourts.gov/sites/default/files/kendrickeopn.pdf

CRIMINAL PROCEDURE: State v. Ward, 315 SW3d 461 (Tenn. 2010), which held that trial court had affirmative duty to ensure that defendant is informed and aware of lifetime supervision requirement prior to accepting defendants guilty plea, does not apply retroactively to toll running of one-year statute of limitation

applicable to petitions for post-conviction relief; because Ward cannot be considered later-arising ground for post-conviction relief and because petitioner has not argued that any other circumstance beyond his control existed to prevent him from filing his petition for post-conviction relief in timely manner, post-conviction court properly dismissed petition for post-conviction relief as untimely; even if petitioners discovery that he was subject to community supervision for life constituted laterarising ground for relief, statute of limitation could not be tolled ad infinitum; irrespective of whether he would have been entitled to due process tolling of statute of limitation following his learning that he would be subject to community supervision for life, petitioner is not entitled to have statute of limitation period tolled for seven years. Huddle v. State, 6/27/13, Knoxville, Page, 6 pages.
http://www.tncourts.gov/sites/default/files/huddlelarrykeithopn.pdf

PUBLIC CHAPTERS ESTATES & TRUSTS: Revision of provisions related to trusts and duties and powers of trustees and fiduciaries. 2013 PC 390, effective 7/1/13, 28 pages.
http://www.tn.gov/sos/acts/108/pub/pc0390.pdf

FAMILY LAW: Revision of provisions relative to court-appointed conservators and guardians. 2013 PC 435, effective 7/1/13, 9 pages.
http://www.tn.gov/sos/acts/108/pub/pc0435.pdf

SIXTH CIRCUIT COURT OF APPEALS CRIMINAL PROCEDURE: District court erred in granting defendants motion to suppress marijuana discovered in tractor-trailer in which defendants were riding and which was registered to third individual (Rivas) when recovered evidence was not product of defendants detention, whether lawful or not; given law enforcement agents reasonable suspicion that Rivas was using tractor-trailer to traffic drugs and their knowledge that Rivas owned tractor, officers had authority to detain vehicle at least briefly, and conclusion that officers would have permitted defendants to depart in tractor-trailer vehicle that agents had followed all morning and reasonably believed was being used to traffic drugs after Rivas fled is untenable; even assuming that defendants detention was unlawful, suppression of evidence was not warranted because it would have been discovered during course of agents lawful detention of Rivas. United States v. Figueredo-Diaz, 6/5/13, Griffin, 13 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0159p-06.pdf

EVIDENCE: In case in which defendant was convicted of participating in methamphetamine drug conspiracy, although defendant and Mendoza drove truck for several hours from North Carolina to Tennessee, defendant claimed that he did not know about drugs and thought he was driving to Tennessee to view construction project, and after his conviction, defendant learned that few days before his trial, Mendoza had participated in plea negotiations in which he told Assistant U.S. Attorney Taylor, governments trial lawyer in defendants case, that defendant had no knowledge of drug conspiracy, because Mendozas statements to Taylor were plainly exculpatory, Taylors failure to disclose Mendozas statements resulted in due process violation; defendants conviction is vacated, and case is remanded for new trial. United States v. Tavera, 6/20/13, Merritt, 19 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0167p-06.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to two counts of being felon in possession of firearm and possession of marijuana with intent to distribute, district court erred in denying defendant s motion to suppress evidence gathered as result of search warrant and arrest; district court erred in concluding that search warrant was supported by probable cause when police received anonymous tip that drugs were being sold from defendant s residence, but discovery of marijuana, even when taken together with short visits and anonymous tip, did not create substantial basis for determining that probable cause existed to search residence; affidavit in support of search warrant, which did not provide substantial basis necessary for finding of probable cause, also failed to provide even minimally sufficient nexus that would justify application of good faith exception. United States v. Buffer, 6/24/13, Cole, 10 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0599n-06.pdf

FORMAL ETHICS OPINION PROFESSION OF LAW: Exceptions to attorney confidentiality rules permit, but do not require, former defense lawyer alleged to have rendered ineffective assistance of counsel to make limited voluntary disclosure to prosecution of information relating to representation of former client outside in-court proceeding without judicial supervision or approval under certain circumstances. Formal Ethics Opinion 2013-F-156, 6/14/13, 7 pages.
http://www.tbpr.org/Attorneys/EthicsOpinions/Pdfs/2013-f-156.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/