TAM-BYTES

J uly 21, 2014

Vol. 17, No. 29
2014 TAM CLE CALENDAR
Webinars
Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury
Trials, 60-minute webinar presented by William L. Pfeifer, Jr., Alabama
appellate attorney, on Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Piercing the Corporate Veil in Tennessee: What Your Business Clients MUST
Know, 60-minute webinar presented by Cole Dowsley, Franklin attorney, on
Thursday, August 14, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

False Claims Act Recovery and Protection for Whistleblowers, 60-minute
webinar presented by Larry Golston, Montgomery attorney, on Wednesday,
August 27, at 2 p.m. (Central), 3 p.m. (Eastern).


On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26
Nashville School of Law

TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice,
including the latest products liability developments, trial tips from a trial judge,
handling medical records and private information, limitations on the use of HIPAA
protected documents in litigation, Affordable Care Act concerns, auto insurance
policies, negotiating with insurance adjusters, caps on damages, Medicare set-
asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs and
defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven Fuller,
Bryan Moseley, David Randolph Smith, and Mathew Zenner.

*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit


Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPICS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting QTIPs,
GRATs, and QPRTs, will drafting in 2014, the intersection of family law and estate
planning issues, use of Medicaid-compliant annuities, hot topics in probate
litigation, practicing in probate court, and updates on issues related to trusts, estate
planning, and probate. Also, hear about ethical issues arising when crafting a
healthcare power of attorney, a living will, or an advance care plan and ethical
issues arising in estate administration, such as client confidentiality, billing
inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell, Rainey,
Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David Callahan,
Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank of America
Private Wealth Management; Harlan Dodson, Dodson, Parker, Behm & Capparella;
Donald Farinato, Holbrook Peterson Smith; Carla Lovell, Sherrard & Roe; Barbara
Boone McGinnis, Elder Law Practice of Timothy L. Takacs; Hunter R. Mobley,
Howard Mobley Hayes & Gontarek; Jeff Mobley, Howard, Mobley Hayes &
Gontarek; Al Secor, CapitalMark Bank & Trust; Tim Takacs, CELA, Elder Law
Practice of Timothy L. Takacs; and Pam Wright, CELA, West Tennessee Legal
Services.

*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

For more information on any of our CLE events, call (800) 727-5257 or visit
www.mleesmith.com.

IN THIS WEEKS TAM-Bytes

Supreme Court says that, in future, resolution of issues relating to trial courts
compliance or lack of compliance with TRCP 56.04 should take into
consideration fundamental importance of assuring that trial courts decision
either to grant or deny summary judgment is adequately explained and is
product of trial courts independent judgment;
Workers Comp Panels says medical expert testimony is not required to
establish permanent and total disability;
In case in which parties settled employees workers compensation claim,
with employer agreeing to provide future medical benefits, Workers Comp
Panel rules trial court did not err in ordering employer to provide panel of
orthopedic surgeons to evaluate employees current need for treatment;
In case involving parents (husband and wife) of child born of surrogate
mother with anonymously donated egg and husbands sperm, Court of
Appeals says name of surrogate mother should be listed on childs birth
certificate;
Court of Appeals rules trial court did not err by including cost mother pays to
enroll children in pre-kindergarten program at private school on support
worksheet as work-related childcare, instead of extraordinary educational
expense;
In case in which defendant challenged search of mobile home she and her
husband rented, Court of Criminal Appeals says while lessee is assumed to
have privacy interests in premises during rental period, such expectation of
privacy is lost if lessee abandons property;
Court of Criminal Appeals rules that defendants consent to search his home
was not contaminated by officers initial warrantless entry into residence;
In reversing trial courts grant of motion to suppress, Court of Criminal
Appeals says that while odor of alcohol alone was insufficient to establish
probable cause, combination of odor of alcohol with other signs of
intoxication supported finding of probable cause for DUI arrest;
In DUI case, Court of Criminal Appeals affirms trial courts finding that
there was probable cause to believe that defendant was driving while
intoxicated even if he passed field sobriety tests administered by law
enforcement; and
General Assembly revises Tennessee Nonprofit Corporation Act.


SUPREME COURT

CIVIL PROCEDURE: In future, resolution of issues relating to trial courts
compliance or lack of compliance with TRCP 56.04 should take into consideration
fundamental importance of assuring that trial courts decision either to grant or
deny summary judgment is adequately explained and is product of trial courts
independent judgment; TRCP 56.04 requires trial court, upon granting or denying
motion for summary judgment, to state grounds for its decision before it invites or
requests prevailing party to draft proposed order; trial court failed to comply with
TRCP 56.04 when it failed to state its grounds when it decided to grant defendant
hospitals motions for summary judgment, and record provides no basis for
imputing reasons included in orders prepared by defendants counsel to trial court;
trial court failed to perform high judicial function required by TRCP 56.04 when
it did not provide parties with grounds for its decision, which would have
demonstrated that it had exercised its own independent judgment in reaching
decision ultimately reflected in summary judgment orders. Smith v. UHS of
Lakeside I nc., 7/15/14, Jackson, Koch, unanimous, 19 pages.
http://www.tncourts.gov/sites/default/files/smithmaryopn.pdf


WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence did not preponderate against trial
courts finding that employee, who underwent two disc surgeries, was permanently
and totally disabled when trial court accredited employees testimony as to his own
limitations and statements he made to vocational experts, employee testified that he
was unable to sit for long periods of time and had difficulty concentrating due to his
medication, and two vocational experts agreed that employee was unable to return
to any of his previous employment positions and only disagreed as to extent of
employees disability; medical expert testimony is not required in order to establish
permanent and total disability. Hamilton v. Pemberton Truck Lines I nc., 7/16/14,
Knoxville, Wade, 9 pages.
http://www.tncourts.gov/sites/default/files/hamiltontracyopn.pdf

WORKERS COMPENSATION: When employee settled her workers
compensation claim in 1997, with employer agreeing to provide future medical
benefits, her authorized treating physician retired, employee selected new physician
in 11/07 from panel provided by employer, and new physician recommended home
exercise program, which employee believed was not adequate treatment, trial court
did not err in ordering employer to provide panel of orthopedic surgeons to evaluate
employees current need for treatment; although TCA 50-6-204 does not explicitly
authorize trial court to order provision of new panel of physicians by employer,
nothing n statute precludes trial court from doing so. McClendon v. Food Lion
LLC, 7/11/14, Knoxville, Blackwood, 9 pages.
http://www.tncourts.gov/sites/default/files/mclendonvfoodlion.pdf


COURT OF APPEALS

TORTS: When plaintiffs filed suit against several doctors following their
mothers death, plaintiffs allegedly learned that appellee physician had amended
his original consultation report to correct misdiagnosis of decedents condition,
plaintiffs were granted leave to amend complaint to add appellee and his medical
practice as defendants to suit, amended complaint was filed five years after filing
of original suit, and appellees moved for summary judgment on ground that
statutes of limitation and repose barred plaintiffs case, trial court properly granted
appellees summary judgment; giving all reasonable inferences in favor of
plaintiffs, if appellees amendment was against recognized standard of
professional care, then one might reasonably infer that his purpose in deviating
from that standard of care was more than mere mistake, but was attempt to hide
his original incorrect diagnosis, and trial court erred in granting summary
judgment on ground of lack of evidence of fraudulent concealment; plaintiffs had
all of relevant information at their disposal by 7/22/10 so as to be charged with
constructive notice of any alleged fraudulent concealment as to that date, and
hence, one-year statute of limitation would begin to run on 7/22/10 and expire on
7/22/11; because case is medical negligence case, plaintiffs were required to send
notice to appellees prior to filing suit pursuant to TCA 29-26-121, and when
plaintiffs complied with notice requirements by sending statutory notice to
appellees by letter dated 7/21/11, TCA 29-26-121(c) extended statute of limitation
for 120 days, or until 11/19/11, and complaint against appellees, filed on 2/1/12,
was filed outside statutes of limitation and repose. Robinson v. Baptist Memorial
Hospital, 7/11/14, WS, Stafford, 21 pages.
http://www.tncourts.gov/sites/default/files/robinsonmopn.pdf

EMPLOYMENT: When state employee was late for work on numerous occasions
prior to and throughout 2010, she sustained work injury in 10/10, she was tardy for
work on 1/15/11, termination proceedings were commenced shortly thereafter, prior
to her receipt of letter recommending termination, and employee tendered request
for FMLA leave, which leave was approved after termination was recommended
but before termination was confirmed, Civil Service Commissions decision to
uphold employees termination was not arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion because conduct
subject to discipline occurred prior to any FMLA request and termination
proceedings were commenced prior to approval of such request without knowledge
that such request had been made; FMLA request does not trump ongoing
disciplinary matter; employee failed to establish elements of interference with
FMLA claim when evidence demonstrated with regard to 1/15/11 tardiness
incident, straw that broke the camels back, that employee failed to contact her
supervisor and/or phone call-out log or to provide doctors excuse in accordance
with employers policies, and hence, employer effectively demonstrated that it
would have terminated employee for failing to comply with leave requirements
notwithstanding any attempt to utilize FMLA leave. Hayes v. State, 7/10/14, WS at
Nashville, Highers, 12 pages.
http://www.tncourts.gov/sites/default/files/hayesconnie.opn_.pdf

EMPLOYMENT: When chief executive officer of company (plaintiff) and
company executed employment agreement that set forth consequences of his
resignation or termination by company, plaintiff called meeting year or so later and
issued ultimatum to board of directors threatening to resign if certain changes were
not made, company later wrote letter to plaintiff accepting his resignation without
Good Reason as defined in employment agreement, plaintiff asserted that
company terminated him without cause and that he did not resign, company
responded that it did not terminate plaintiff but simply accepted his resignation, and
plaintiff filed suit seeking severance pay and other benefits he claimed that he was
entitled to pursuant to employment agreement, trial court properly granted plaintiff
summary judgment; according to governing document, any resignation by plaintiff
would not be effective without written notice, plaintiff did not provide such notice,
and hence, plaintiff did not terminate his own employment; effect of companys
letter addressed to plaintiff was to terminate his employment, letter did not specify
any circumstances supporting decision to terminate plaintiff for cause, and hence,
company terminated plaintiff without cause and he is entitled to severance pay and
other benefits specified in contract. ONeil v. Clinically Home LLC, 7/16/14, MS,
McMillan, 16 pages.
http://www.tncourts.gov/sites/default/files/oneilm.opn_.pdf

INSURANCE: When Casey was supervising two minors, her daughter and
neighbor (Ryan), who were riding four-wheeler owned by Casey on Simmons
property, Casey entered house and Ryan began operating four-wheeler, Ryan
apparently drove four-wheeler into road where he collided with passing vehicle
driven by Tipton, Ryan was killed in accident, Ryans father filed suit against
Simmons, Casey, and Tipton, Simmons was insured under property owners policy,
insurer entered defense on behalf of Simmons and Casey, with reservation of rights,
and insurer brought declaratory judgment action, trial court properly held that
policy provided no coverage with respect to accident or subsequent suit; when
policy exclusion defined land motorized vehicle to include four-wheeler, among
other things, owned by insured while off the insured premises, policy language
required four-wheeler to be off insured premises in order to be considered land
motorized vehicle. Tennessee Farmers Mutual Insurance Co. v. Simmons,
7/15/14, ES, Frierson, 7 pages.
http://www.tncourts.gov/sites/default/files/simmonsfinal.pdf

TAXATION: In order to invoke jurisdiction of court to hear claim that collection
of tax would be unjust or illegal, taxpayer must first pay tax, and party is not
excused from this requirement based on nature of partys challenge to tax or manner
in which unjustness or illegality of tax is raised. Nashville Metro Government v.
New Orleans Manor I nc., 7/16/14, MS, Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/nashvillemetrogov.v.neworleans.opn_.pdf

PROPERTY: In case in which plaintiffs and defendant each owned property on
island in Tennessee River, there was causeway or land bridge across river,
connecting island to mainland, and defendant filed claim for private condemnation
of easement on plaintiffs property to enable defendant to access causeway, because
causeway is accessible by public, trial court erred by enjoining defendant from
using causeway; private condemnation action is not defeated simply because person
who seeks condemnation may access public road by going through navigable
waters; because allowing defendant to use plaintiffs property to gain access to
causeway is defendants only adequate and convenient outlet to public road, trial
court erred in concluding that private condemnation statute, TCA 54-14-102, was
inapplicable; defendant is entitled to private condemnation of easement over
plaintiffs property on mainland end of causeway and on island end of causeway, so
that he may access Mullins Cove Road from his property. Walker v. Smith, 7/11/14,
WS at Nashville, Kirby, 19 pages.
http://www.tncourts.gov/sites/default/files/walkerr.opn_.pdf

FAMILY LAW: In case involving parents (husband and wife) of child born of
surrogate mother with anonymously donated egg and husbands sperm, trial court
erred in requiring childs birth certificate to list mother as unknown; while wife is
childs legal mother, name of surrogate mother should be listed on birth
certificate as childs mother; while Vital Records Act of 1977 (Act), which
requires that certificate of birth be filed with office of vital records for every live
birth in Tennessee, does not define mother for use in completing birth certificate,
in considering intent of and purpose of Act, mother to be entered on certificate of
live birth required by TCA 68-3-301 is same as that used in preparing Standard
Certificate of Live Birth, as promulgated by National Center for Health Statistics,
i.e., woman who delivers child or woman who produced the live birth. I n re
Adoption of Male Child A.F.C., 7/16/14, MS, Dinkins, 8 pages.
http://www.tncourts.gov/sites/default/files/inre.a.f.c.opn_.pdf

FAMILY LAW: Because tuition mother pays to enroll children in pre-
Kindergarten program at private school is legitimate child care expense, trial court
did not err by including that cost on child support worksheet as work-related
childcare, instead of extraordinary educational expense, for purposes of
calculating child support; even though children are enrolled in program at private
school and cost of that program is billed as tuition, nature of that program and its
cost are not so different from what parents ordinarily encounter when arranging
daycare for children who have not yet reached school age. Rucker v. Harris,
7/15/14, MS, Stanley, 9 pages.
http://www.tncourts.gov/sites/default/files/ruckerm.opn_.pdf

FAMILY LAW: In case in which husband sought to terminate his alimony
obligation to wife based upon oral agreement at time of divorce that alimony would
cease upon husbands retirement, when marital dissolution agreement became
effective upon entry of final divorce decree, and there was no mention of any
agreement between husband and wife that spousal support would automatically
terminate once husband retired, trial court did not err in refusing to allow husbands
testimony of oral agreement under parol evidence rule of contract law. Bailey v.
Bailey, 7/17/14, ES, McClarty, 5 pages.
http://www.tncourts.gov/sites/default/files/bailey2opn.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of attempted
voluntary manslaughter when defendant accused victim of stealing his laptop
computer, when victim denied having computer, defendant grew extremely upset
and continued to yell at her and demand whereabouts of computer, and during
confrontation, defendant suddenly shot victim, after which defendant continued to
yell at victim about computer and threatened to kill her; jury determined that
defendant acted out of adequate provocation so as to establish element of voluntary
manslaughter based on defendants belief that victim stole his computer along with
her denial of theft when he confronted her. State v. Khaliq Ra-El, 7/11/14, Jackson,
Woodall, concurrence by Witt, 11 pages.
http://www.tncourts.gov/sites/default/files/raelkhaliqopn.pdf
http://www.tncourts.gov/sites/default/files/ra-elkhaliqcon.pdf

CRIMINAL PROCEDURE: In case in which defendant and her husband were
convicted of especially aggravated robbery and especially aggravated kidnapping in
connection with offenses committed against their 83-year-old landlord, trial judge
properly denied defendants motion to suppress evidence seized inside her mobile
home when she lacked standing to contest search; while fact that defendant and her
husband were behind in rent for mobile home would not automatically preclude
finding that they intended to return to home, additional facts suggest that couple
intended to abandon premises when they lured their landlord over to residence to
assault and rob him and then tied him up prior to their departure; while lessee is
assumed to have privacy interests in premises during rental period, such expectation
of privacy is lost if lessee abandons property. State v. Thomas, 7/14/14, Knoxville,
Thomas, 16 pages.
http://www.tncourts.gov/sites/default/files/thomaschristinaleejonesopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to initiating
process intended to result in manufacture of methamphetamine and being felon in
possession of firearm, trial judge properly denied defendants motion to suppress
items seized during search of his home when defendant gave officers consent to
search his residence and that consent was not contaminated by officers initial
warrantless entry into residence; when determining whether voluntary consent is
sufficiently attenuated from unlawful seizure, three factors must be considered
temporal proximity of illegal seizure and consent, presence of intervening
circumstances, and purpose and flagrancy of official misconduct. State v.
Hammock, 7/15/14, Nashville, Page, 10 pages.
http://www.tncourts.gov/sites/default/files/hammockcurtiswopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge erred in granting defendants
motion to suppress with regard to any evidence or statements pertaining to or
obtained after defendants arrest when, while odor of alcohol alone was insufficient
to establish probable cause, combination of odor of alcohol with other signs of
intoxication supported finding of probable cause for DUI arrest; trial court
incorrectly concluded that officers observations were insufficient to establish
probable cause to justify warrantless arrest of defendant when defendant committed
traffic violation by running stop sign, he and his vehicle emitted strong odor of
alcohol, and he admitted having consumed three or four beers. State v. Roscoe,
7/11/14, Jackson, Glenn, 7 pages.
http://www.tncourts.gov/sites/default/files/roscoemarvinopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial court properly determined that
there was probable cause to believe that defendant was driving while intoxicated
even if he passed field sobriety tests administered by law enforcement when
defendant was involved in head-on collision which occurred mainly in opposing
lane of traffic, victim told law enforcement that defendant was so far in her lane that
she veered into his lane to try and avoid him, defendant smelled of alcohol and had
red eyes, he acknowledged having consumed two 24-ounce beers, and several beer
cans and half-empty whiskey bottle were found strewn from passengers side door
of his car. State v. Crisp, 7/17/14, Nashville, Williams, 15 pages.
http://www.tncourts.gov/sites/default/files/crispwaopn2.pdf


PUBLIC CHAPTER

COMMERCIAL LAW: Tennessee Nonprofit Corporation Act is updated and
revised. 2014 PC 899, effective 1/1/15, 44 pages.
http://www.tn.gov/sos/acts/108/pub/pc0899.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