TAM-BYTES July 15, 2013 Vol. 16, No.

28
2013 TAM CLE CALENDAR

Audio Conference
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 Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (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

PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and

challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court; William
(Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: Donald Farinato, Holbrook Peterson Smith; Monica Franklin,

CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY: Elaine Beeler, Clerk & Master, Chancery Court for 21st Judicial
District (Hickman, Lewis, Perry, and Williamson counties); Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

IN THIS WEEKS TAM-Bytes Court of Appeals, in case in which patrolman with Anderson County Sheriffs Department was struck by pick-up truck and received workers comp benefits, says Anderson County was self-insured through Tennessee Risk Management Trust, and hence, uninsured motorist statutes did not apply; Court of Appeals rules trial court erred in finding that father was willfully and voluntarily underemployed and in imputing income to him of $36,000 per year when fathers education and experience are in real estate financial sector, sector particularly affected by downturn in economy; Court of Appeals rules juvenile court erred in denying putative fathers petition to set aside order establishing parentage and child support under TRCP 60.02 when putative father allegedly signed voluntary acknowledgment of paternity and childs birth certificate, mother did not tell putative father at time that she had had sexual relations with another man during time period in which child was conceived, and private DNA test showed that putative father was not biological father of child; Court of Criminal Appeals says trial judge erred in constructively amending indictment in its charge to jury when state alleged one theory of liability in each count of indictment, but court included additional theories in its charge to jury; and

Court of Criminal Appeals, in case in which trial judge revoked defendants probation, says, by running defendants sentences consecutively, trial court improperly increased defendants sentences. WORKERS COMP PANEL WORKERS COMPENSATION: Evidence supported trial courts finding that employee qualified as permanently and totally disabled when testimony of doctors established that accident aggravated pre-existing neck and back condition of employee, which had been asymptomatic beforehand, and served as root cause of his other injuries, and when employee, who was physically active before accident, had reached maximum recovery by time of trial and had continued to use wheelchair at time of trial, when his right shoulder injury requires him to use his left hand for eating, when he needs assistance when bathing, and when employee, now in his sixties, is unlikely candidate for future employment; evidence did not preponderat e against trial courts refusal to require employer to pay expenses related to employees second spinal surgery when Dr. Caseys aborted shoulder surgery turned out badly for employee, Dr. Abels first spinal surgery successfully resolved employees incontin ence and averted possibility of paralysis, and employee, having gained relief under care of Abel and exhibiting little confidence in either Casey or other physicians who had found no compression of spinal cord, naturally preferred to remain under Abels care; once employee had justifiably engaged Abel, subsequent efforts by employer to arrange for different physician did not preclude employee from continuing under his care. Arnett v. McMinn County Government, 7/9/13, Knoxville, Wade, 15 pages.
http://www.tncourts.gov/sites/default/files/arnettpaulopncor.pdf

COURT OF APPEALS TORTS: In case in which plaintiff, while attending to his duty as patrolman for Anderson County Sheriffs Department, was struck by pickup truck driven by Haynes, pursuant to Coverage Documents issued by Tennessee Risk Management Trust (TRMT) to Anderson County, plaintiff received workers compensation benefits for injuries he sustained, plaintiffs filed suit against Haynes and owner of pick-up truck, and TRMT, countys vehicle liability carrier, filed ans wer in opposition, trial court properly granted TRMT summary judgment, holding that plaintiff was excluded from uninsured motorist coverage as he was employee of Anderson County who had received workers compensation; Anderson County is deemed to be self-insured and uninsured/underinsured statutes are not applicable to or in conflict with Coverage Documents, which excluded employee from uninsured coverage; question of whether Anderson County should provide

uninsured/underinsured motorist coverage to its employees, such as plaintiff, is policy decision to be decided by legislative body of Anderson County and not court. Harris v. Haynes, 7/10/13, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/harrisdmopn1.pdf

FAMILY LAW: Trial court erred in finding that father was willfully and voluntarily underemployed and in imputing income to him of $36,000 per year when father s education and experience are in real estate financial sector, sector particularly affected by downturn in economy, father testified that he used traditional means to seek employment in this field and also asked mothers financial advisors and her family for assistance in meeting potential employers, fathers networking succeeded in finding father sporadic consulting work, but failed to result in full-time employment at level consistent with his previous employment, and trial court made no adverse credibility findings against fathers testimony concerning his sincere, yet fruitless, efforts to find job; on remand, trial court should make fresh determination of parties respective child support obligations. Rogin v. Rogin, 7/10/13, WS, Stafford, 35 pages.
http://www.tncourts.gov/sites/default/files/roginaopn.pdf

FAMILY LAW: In case in which putative father allegedly signed voluntary acknowledgment of paternity and childs birth certificate when child was born, mother did not tell putative father at time that she had had sexual relations with another man during time period in which child was conceived, and after private DNA test showed that putative father was not biological father of child, he filed petition in juvenile court to disestablish paternity and set aside under TRCP 60, juvenile court erred in denying putative fathers petition to set aside order establishing parentage and child support under TRCP 60.02; given fact that, irrespective of any personal belief mother may have had that putative father was child s biological father, it is arguable that mother had duty to speak at that time, so her failure to do so was fraudulent concealment, which was sufficient to establish at least mistake or other misconduct of an adverse party within meaning of TRCP 60.02(1) or (2); case is remanded trial juvenile court for entry of order directing DNA testing for putative father and child. In re T.M.S., 7/8/13, WS, Kirby, 15 pages.
http://www.tncourts.gov/sites/default/files/inretmsopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of attempted especially aggravated robbery when, after victim exited car in which defendant was passenger, defendant retrieved shotgun from trunk of vehicle, followed victim, and ordered victim to lay down and give him his money, defendant then shot victim at close range, and victim immediately fell to ground and started crawling to the gate

and began screaming, Help; it was not necessary for proof to show that defendant actually inflicted serious bodily injury on victim because in order to sustain conviction for attempt, proof must only show that defendant took substantial step toward completion of crime while acting with required culpability. State v. Callicutt, 7/5/13, Jackson, Woodall, 12 pages.
http://www.tncourts.gov/sites/default/files/callicuttkewanopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of assault and aggravated burglary, trial judge erred in constructively amending indictment in its charge to jury state alleged one theory of liability in each count of indictment, but court included additional theories in its charge to jury, and this is particularly of concern because of victims testimony that he was terrified and frightened during attack, which could have caused some jurors to convict defendant based on bodily injury to victim and some to convict based on victims being in fear of imminent bodily injury, which was theory not charged in indictment; defendant s convictions are reversed, and case is remanded for new trial. State v. Smith, 7/12/13, Jackson, Glenn, 25 pages.
http://www.tncourts.gov/sites/default/files/smithmichaelopn.pdf

CRIMINAL PROCEDURE: In DUI case, officers initial encounter with defendant was brief consensual encounter that was proper under community caretaking function of law enforcement when officer, who was responding to call of man who was slumped over and unresponsive in parked car, opened door of vehicle after defendant failed to respond to knock on window, and immediately detected strong odor of alcoholic beverage emanating from vehicle; officers encounter with defendant became brief investigatory stop supported by articulable and reasonable suspicion when officer smelled odor of alcohol coming from defendant and/or his vehicle, and based on defendants performance on field sobriety tests and his response to questions, officer established probable cause to arrest defendant for DUI. State v. Lowe, 7/5/13, Nashville, Page, 7 pages.
http://www.tncourts.gov/sites/default/files/lowepatricktimothy.pdf

CRIMINAL SENTENCING: In case in which trial judge revoked defendants probation and ordered defendant to serve his sentence consecutively, rather than concurrently, upon finding that violation occurred, trial court had authority to commence execution of original judgments as they were entered but did not have authority to increase defendants original sentence; by running defendants sentences consecutively, trial court improperly increased defendants sentences; case is remanded for entry of order reflecting that defendants sentences are to be served concurrently. State v. Cole, 7/10/13, Jackson, Glenn, 3 pages.
http://www.tncourts.gov/sites/default/files/colederrickopn.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/