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TAM-BYTES

May 5, 2014
Vol. 17, No. 18
2014 TAM CLE CALENDAR

Webinars
Common Probate Problems Facing Tennessee Attorneys, 60-minute webinar
presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday,
June 11, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Search and Seizure: History and Update on Fourth Amendment Law, 60-
minute webinar presented by Lara McCauley Alvis, Birmingham attorney, on
Thursday, June 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

In health care liability case against State of Tennessee and others, Court of
Appeals holds plaintiff complied with TCA 29-26-121 pre-suit notice
requirements by providing notice to University of Tennessee Graduate School
of Medicine, health care provider, which entity is division of agency of State
and also named defendant in case;
In case in which plaintiff, commercial truck driver, was injured in accident
while sitting in passenger seat with another person driving, Court of Appeals
holds plaintiff was employee of motor carrier under applicable definition of
49 CFR 390.5 and, hence, not covered pursuant to exclusion in commercial
liability insurance policy issued to common carrier;
Court of Appeals rules father did not meet his burden of proving that mothers
proposed relocation did not have reasonable purpose when mother testified
that nurse practitioner job positions available in general McNairy County and
Jackson, Tennessee, areas were not suitable for her;
Court of Appeals, in divorce case, holds trial court erred in concluding that
father waived psychologist-client privilege as to all of his mental health
records by allowing evaluating psychologists to speak to his treating
psychologists, by providing mental health records to evaluating psychologists,
and by testifying that he had history of depression and had undergone
treatment for it;
General Assembly limits annexation by ordinance or resolution; and
General Assembly modifies thirteenth juror rule in criminal cases.


WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence unequivocally pointed to conclusion
that employees 11/09 spinal condition was new or advanced injury, distinct from
injury for which employee had surgery in 2003, and hence, proof established that
employees 2009 condition involved anatomical change from his pre-existing
degenerative disc condition; evidence did not preponderate against trial courts
finding on issue of causation when medical proof clearly established that employees
work activities were possible cause of his herniated disc and when employee clearly
reported onset of symptoms during work day on 11/11/09. Bean v. J ohnson
Controls Inc., 4/30/14, Nashville, Koch, 14 pages.
http://www.tncourts.gov/sites/default/files/beanbobbyopnjo.pdf


COURT OF APPEALS

TORTS: In medical malpractice action against State of Tennessee (State) and others
by plaintiffs whose infant son died during or shortly after delivery at University of
Tennessee Medical Center (UTMC), Claims Commission properly held that
plaintiffs complied with TCA 29-26-121 pre-suit notice requirements by providing
notice to University of Tennessee Graduate School of Medicine, health care
provider, which entity is division of agency of state and also named defendant in
case; State argued that its agent for service of process for purpose of pre-suit notice
requirement in medical malpractice case is Attorney General or Assistant Attorney
General, but TRCP 4.04 applies to service of summons and complaint in lawsuit; in
alternative to primary decree that plaintiffs fully complied with TCA 29-26-121,
plaintiffs demonstrated extraordinary cause when state of law on question of how to
serve TCA 29-26-121 pre-suit notice on State was unsettled, unclear, and potentially
confusing, and there was no statutory or regulatory guidance on issue at time
plaintiffs were required to provide pre-suit notice. Brown v. Samples, 4/29/14, ES,
Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/brownfopn.pdf

TORTS: When plaintiff, fianc of defendants daughter who was staying at
defendants house for extended visit, was working outside in yard, helping to clear
away dead brush and trees from property, he stepped on rock, slipped, fell, and
broke his arm, and filed premises liability suit, trial court properly granted
defendants summary judgment when there was no evidence of dangerous or
defective condition, rock that plaintiff tripped on was easily visible in area with no
obstructions it was truly open and obvious and plaintiff was familiar with area,
having worked there and traveled same path on three earlier occasions. Goumas v.
Mayse, 4/29/14, ES, Susano, 18 pages.
http://www.tncourts.gov/sites/default/files/goumas.pdf

INSURANCE: When plaintiff, commercial truck driver, was injured while sitting in
passenger seat with another person driving, while plaintiff was asleep, driver had
accident, resulting in catastrophic injuries to plaintiff, and plaintiff sought benefits
under motor carriers liability policy, trial court properly ruled that plaintiff was
employee of motor carrier under applicable definition of 49 CFR 390.5 and,
hence, not covered pursuant to exclusion in commercial liability insurance policy
issued to common carrier; passenger who is co-driver qualifies as employee within
meaning of employee under 49 CFR 390.5. Miller v. Northland I nsurance Co.,
4/29/14, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/millera.opn_.pdf

FAMILY LAW: In calculating parents child support obligation, current income
may be established by averaging parents fluctuating income; trial courts decision
to average fathers income over four-year period to determine his current income for
child support purposes was proper. State ex rel. Moss v. Moss, 4/24/14, MS,
Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/mossd.opn1_.pdf

FAMILY LAW: Child support should be calculated based upon actual number of
actual days parents exercise parenting time, rather than number of days
contemplated in permanent parenting plan. Allen v. Allen, 4/28/14, MS, Bennett,
7 pages.
http://www.tncourts.gov/sites/default/files/allenc.opn_.pdf

FAMILY LAW: In case in which mother was designated primary residential parent
for parties child at time of divorce, after divorce, mother graduated from nurse
practitioner program and obtained job offer in Mississippi, mother notified father of
her intent to relocate with child to Mississippi, father filed petition opposing
relocation, arguing that proposed relocation did not have reasonable purpose under
TCA 36-6-108(d)(1) in that mother failed to apply for nurse practitioner jobs in
Tennessee, and trial court agreed with father and denied mother permission to
relocate with child, by failing to submit proof of comparable jobs in Tennessee for
which mother was qualified, father did not meet his burden of proving that mothers
proposed relocation did not have reasonable purpose when mother testified that
nurse practitioner job positions available in general McNairy County and Jackson,
Tennessee, areas were not suitable for her, in that they were either temporary
positions or included requirements she did not meet, while father proffered his own
testimony criticizing mother for not applying for nurse practitioner positions near
McNairy County and speculating that surely there were such nurse practitioner
jobs available in his area; increased pay and enhanced career opportunities constitute
reasonable purpose for proposed relocation. Redmon v. Redmon, 4/29/14, WS,
Kirby, 11 pages.
http://www.tncourts.gov/sites/default/files/redmonlropn.pdf

FAMILY LAW: Evidence preponderated against trial courts award to wife of
$3,000 per month in transitional alimony when wife, who has high school education,
could not be rehabilitated although wife has taken steps to make herself more
marketable by becoming licensed real estate agent and earning her certification as
surgical technologist, best job she has been able to find pays just one-tenth of
amount husband earns in year as physician; given fact that majority of marital
property wife has been awarded is in form of retirement funds that are not
immediately accessible to her, fact that wife earns $3,000 per month as assistant
property manager, and fact that wifes expenses total $9,580, wife has need for
alimony in futuro and husband has ability to pay wife $4,500 per month; trial courts
judgment is modified to award wife alimony in futuro of $4,500 per month. J irjis v.
J irjis, 4/30/14, MS, Cottrell, 14 pages.
http://www.tncourts.gov/sites/default/files/jirjisj.n.opn_.pdf

EVIDENCE: In divorce case involving custody dispute in which mother asked trial
court to compel father to produce all of mental health records from his treating
psychologists, trial court erred in concluding that father waived psychologist-client
privilege as to all of his mental health records by allowing evaluating psychologists
to speak to his treating psychologists, by providing mental health records to
evaluating psychologists, and by testifying that he had history of depression and had
undergone treatment for it; there was, at most, limited waiver of fathers
psychologist-client privilege, and only as to privileged mental health information
that father voluntarily disclosed to two evaluating psychologists involved in case;
voluntarily disclosing some privileged information to evaluating psychologist or
giving evaluator access to treating mental health professionals does not result in
overall waiver of psychologist-client privilege; as for mental health records not
subject to limited waiver of privilege, standard for trial court to compel disclosure of
records was not met in this case; case is remanded for factual findings on any
privileged mental health records father voluntarily disclosed. Culbertson v.
Culbertson, 4/30/14, WS, Kirby, 60 pages.
http://www.tncourts.gov/sites/default/files/culbertsonhaopn.pdf

GOVERNMENT: Tennessee Secondary School Athletic Association (TSSAA),
association that governs and coordinates interscholastic athletic competition of
substantially all public and private secondary schools in Tennessee, is functional
equivalent of government agency for purposes of Tennessee Public Records Act.
City Press Communications LLC v. Tennessee Secondary School Athletic
Association, 4/30/14, MS, Clement, 16 pages.
http://www.tncourts.gov/sites/default/files/citypresscommun.opn_.pdf


COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of three counts of rape and
three counts of statutory rape by authority figure, trial court did not err in denying
defendants motion to admit evidence of victims prior sexual behavior under TRE
412 when such evidence was not relevant to issue of defendants guilt or innocence
in raping victim; although TRE 412 is not applicable to offense of statutory rape by
authority figure, any error on part of trial court in not admitting evidence was
harmless given fact that evidence of consent as proven by victims sexual history
would be irrelevant. State v. Russell, 4/29/14, Nashville, Woodall, 34 pages.
http://www.tncourts.gov/sites/default/files/russellhenrywayne.pdf

EVIDENCE: In case in which defendant was convicted of reckless homicide, first
degree felony murder, and two counts of facilitation of attempted first degree murder
in connection with incident on 6/11/07 in which shots were fired at three men in car
during attempted robbery, trial judge did not err in admitting evidence of separate
carjacking and shooting committed by defendant and accomplice several hours prior
to homicide in order to establish defendants identity as murderer; because no
eyewitnesses could link defendant to 6/11/07 crimes, probative value of evidence
was particularly high, and defendants identity could only be established by linking
him to stolen vehicle and weapon employed in another crime. State v. Churchman,
4/28/14, Jackson, Williams, 19 pages.
http://www.tncourts.gov/sites/default/files/churchmanbopn3.pdf

EVIDENCE: In especially aggravated kidnapping case, trial court erred in
excluding testimony of 911 operator (Hackney) who spoke with victim when
victims statement to Hackney about how many intruders had been in her house was
admissible as record of regularly conducted activity; trial courts error was harmless
when evidence of victims statements to police and her son about number of
intruders was admitted at trial through other testimony. State v. Damon, 4/25/14,
Nashville, Tipton, 63 pages.
http://www.tncourts.gov/sites/default/files/fullerjopn_0.pdf

CRIMINAL SENTENCING: Although 10-year sentence for Class C felony is not
illegal, Range III persistent offender cannot be sentenced to release eligibility date
less than 45%; defendants sentence is illegal in light of mandatory provisions of
sentencing act when defendant was sentenced to 10 years for theft over $10,000,
Class C felony, to be served at 30%; trial court erred in denying defendants motion
to modify his sentence, and case is remanded for trial court to correct judgment.
State v. Fuller, 4/25/14, Jackson, Williams, 5 pages.
http://www.tncourts.gov/sites/default/files/fullerjopn_0.pdf


PUBLIC CHAPTERS

FAMILY LAW: With regard to in loco parentis decision-making for minor child,
person standing in loco parentis must sign in loco parentis affidavit under penalty of
perjury stating that person has taken responsibility for health care of minor child.
2014 PC 696, effective 7/1/14, 4 pages.
http://www.tn.gov/sos/acts/108/pub/pc0696.pdf

GOVERNMENT: From 4/15/13 through 5/15/15, no municipality may extend its
corporate limits by means of annexation by ordinance or resolution and no
annexation will become operative during such period, unless otherwise permitted
pursuant to hardship provision, provisions of comprehensive growth plans, or
consent of owner(s) of property. 2014 PC 707, effective 4/15/14 & 5/16/15, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0707.pdf

CRIMINAL PROCEDURE: Chris Newsom Act modifies thirteenth juror rule in
criminal cases. 2014 PC 694, effective 7/1/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0694.pdf

EVIDENCE: Channon Christian Act limits evidence of other crimes, wrongs, or
acts to prove character of deceased victim. 2014 PC 713, effective 7/1/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0713.pdf

CRIMINAL SENTENCING: With regard to 30-day and 90-day sentences to
confinement for second and third convictions of domestic assault that results in
bodily injury, respective sentence must be served on consecutive days; person
convicted of domestic assault that results in bodily injury must serve at least
minimum sentence day-for-day. 2014 PC 693, effective 7/1/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0693.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: In suit against former attorneys, alleging that they committed malpractice
by mishandling claims pertaining to plaintiffs husbands illness and death from
mesothelioma, district court properly concluded that suit was barred by Tennessees
one-year statute of limitation; notwithstanding plaintiffs claim that each of alleged
acts of malpractice caused single indivisible injury, acts can be divided into two
groups those pertaining to mishandling of litigation, and those pertaining to
deficient representation during and after settlement negotiations and both groups
were time-barred. Frazier v. J ackson, 4/21/14, Cole, 8 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0297n-06.pdf

EMPLOYMENT: In suit by African-American sisters, aged 77 and 70,
respectively, district court erred in granting defendant employer summary judgment
on age discrimination claim when there was genuine issue of material fact as to
whether seniority policy existed when it came to layoffs, thus tending to show that
defendants proffered reason for terminating plaintiffs was pretext for
discrimination; district court erred in granting defendant summary judgment on race
discrimination claim when there was material issue of fact concerning whether race
was reason plaintiffs were terminated from their jobs, rather than reasons offered by
defendant. Brewer v. New Era I nc., 4/29/14, Clay, 15 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0341n-06.pdf

COMMERCIAL LAW: Because disciplinary action stemmed from bankruptcy
itself and would necessarily be resolved in claims allowance process, Stern v.
Marshall, 131 SCt 2594 (2011), did not strip bankruptcy court of its constitutional
authority to enter final monetary judgment in dischargeability action under 11 USC
523(a)(2)(B). Hart v. Southern Heritage Bank, 4/28/14, Donald, 7 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0327n-06.pdf


ATTORNEY GENERAL OPINION

CRIMINAL LAW: Proposed bill, which would make owner of motor vehicle
responsible for payment of citation for passing stopped school bus that is issued
solely on basis of evidence obtained from traffic enforcement camera, is susceptible
to due process challenge on basis that it establishes criminal, not civil, enforcement
scheme. Attorney General Opinion 14-48, 4/21/14, 5 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-48.pdf



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download the full text of any state appellate court decision by accessing the
states web site by clicking here: http://www.tncourts.gov