TAM-BYTES

June 22, 2015

Vol. 18, No. 25
2015 TAM CLE CALENDAR

Webinars
Maximizing Uninsured Motorist Coverage in Tennessee from the
Plaintiff's Perspective, 60-minute webinar presented by Laura Baker,
with the Law Offices of John Day in Brentwood, on Wednesday, July 8, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Landlord and Tenant Law: Evictions, Court, and Litigation,
60-minute webinar presented by Joshua Kahane, with Glankler Brown in
Memphis, on Thursday, July 16, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee's New Business Court is Now Open for Business, 60-minute
webinar presented by Chancellor Ellen Hobbs Lyle, Davidson County
Chancery Court, on Thursday, July 23, 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 www.mleesmith.com

On-Site Events

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 25
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: 16th Judicial District Circuit Judge Mark Rogers; Laura
Baker, Law Offices of John Day; Brandon Bass, Law Offices of John Day;
Philip N. Elbert, Neal & Harwell; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson; Chris Tardio, Gideon, Cooper &
Essary; and Bryan K. Williams, Gullett Sanford Robinson & Martin

HIGHLIGHTS: Review of recent personal injury cases; constitutionality

of caps on damages; recent developments in healthcare liability pre-suit
notice and certificate of good faith requirements and ex parte
communications; trial judges dos and donts for arguing for or against a
motion for summary judgment; handling complex subrogation and lien
issues; social media, the internet, and ESI challenges; effective direct
examination, cross-examination, and redirect; deposition strategies
preparing for deposition, preparing the witness, and taking the deposition;
and interplay of ethics, evidence, and experts.
To learn more or to register, visit: www.mleesmith.com/tn-personal-injury-law

Family Law Conference for Tennessee Practitioners

*Two dates in Nashville this year*
WHEN: Thursday & Friday, October 8 & 9 AND
Thursday & Friday, December 3 & 4
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE, including 12 hours of GENERAL and 3
hours of DUAL credit
OCTOBER FACULTY: Judge Don R. Ash, senior judge, Tennessee
Senior Program; Judge Mike Binkley, circuit court, 21st Judicial District
(Hickman, Lewis, Perry, and Williamson counties); Judge Philip Smith,
circuit court, Davidson County; and Judge Thomas Wright, circuit court,
3rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins counties);
along with attorneys Barry Gold, McWilliams & Gold, Chattanooga; John
J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville; Cathy Speers
Johnson, Thompson Burton PLLC, Nashville; Stanley A. Kweller,
Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Marlene
Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr., Richter &
Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; and Jacob Thorington,
Cheatham, Palermo & Garrett Law, Nashville
DECEMBER FACULTY: Judge Robert L. Childers, circuit court,
Shelby County; Judge Phillip Robinson, circuit court, Davidson County;
Judge Joseph Woodruff, circuit court, 21st Judicial District (Hickman,
Lewis, Perry, and Williamson counties); and Judge Thomas Wright, circuit
court, 3rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins
counties); along with attorneys Amy J. Amundsen, Rice, Amundsen &

Caperton PLLC, Memphis; John J. Hollins, Jr., Hollins, Raybin &

Weissman PC, Nashville; Cathy Speers Johnson, Thompson Burton PLLC,
Nashville; Stanley A. Kweller, Jackson, Kweller, McKinney, Hayes, Lewis
& Garrett, Nashville; Marlene Moses, MTR Family Law, PLLC, Nashville;
Linley Richter, Jr., Richter & Rasberry, P.C., Memphis; Kevin Shepherd,
Maryville attorney; Greg Smith, Stites & Harbison PLLC, Nashville; and
Jacob Thorington, Cheatham, Palermo & Garrett Law, Nashville.
HIGHLIGHTS: Protecting a clients separate assets; valuing and dividing
marital property; access to mental health records in a custody case; special
issues in military divorce; practical tips from judges on issues such as
attorney fees, contempt, and child custody modification; marketing yourself
and your law firm; social media tips and tricks; domestic violence cases and
mediation; cohabiting couples and same-sex marriages; attorney fees in
family matters and contempt; case law/legislative update; and ethical
considerations in family law.
To learn more or to register, visit: http://www.mleesmith.com/family-law-15

Probate & Estate Planning Conference for

Tennessee Attorneys
WHEN: Thursday & Friday, October 22 & 23
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE, including 12 hours of GENERAL and 3
hours of DUAL credit
FACULTY: Rebecca Blair, The Blair Law Firm, Brentwood; Julie A.
Boswell, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville;
Jennifer Surber, Surber, Asher, Surber & Moushon, PLLC, Nashville; Harlan
Dodson, Dodson, Parker, Behm & Capparella P.C., Nashville; Donald J.
Farinato, Holbrook Peterson Smith, PLLC, Knoxville; David Heller, Martin
Heller Potempa & Sheppard, Nashville; Steve McDaniel, Wyatt Tarrant &
Combs LLP, Memphis; John McDonald, Evans, Jones & Reynolds, PC,
Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek, PLLC,
Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville;
Joel D. Roettger, Gentry, Tipton & McLemore, P.C., Knoxville; Stacy
Roettger, The Trust Company of Knoxville, Knoxville; Brian S. Shelton,
Bradley Arant Boult Cummings LLP, Nashville; Alexander M. Taylor,
Kennerly Montgomery & Finley, P.C., Knoxville; and Matthew Thornton,
Bourland, Heflin, Alvarez, Minor & Matthews, PLC, Memphis.

HIGHLIGHTS: Advanced estate planning tips; checklists with trust drafting

tips; estate planning with trusts; will drafting tips planning opportunities and
challenges for 2015 and beyond; planning for digital assets; revocable trusts
versus traditional will; planning for a gradual transfer of land within the
family; features of properly designed grantor trust for Medicaid and veterans
planning; minimizing fees and costs by utilizing alternatives to probate; how
to use retirement assets to fund long-term care; strategies for resolving
TennCare claims; trusts, estate planning, and probate update; tips for
practicing in probate court; ethical issues arising in estate planning and estate
administration, such as client confidentiality, billing inquiries, and other
difficult-to-resolve dilemmas; and sample forms and checklists.
To learn more or to register, visit: http://www.mleesmith.com/probate

IN THIS WEEKS TAM-Bytes

Court of Appeals says that because amendments to malpractice statute
made application of ordinary negligence/medical malpractice
dichotomy potentially confusing and unclear at time, and because both
sides tried case on mistaken belief that definition of health care
liability action found in Tennessee Civil Justice Act applied,
plaintiffs filed complaint in good faith reliance on extension of
applicable statute of limitation and are, therefore, entitled to TCA 2926-121(c)s 120-day extension;
Court of Appeals reverses trial courts denial of mothers request to
relocate to Pennsylvania with parties four children when mothers
stated purposes for relocating, i.e., educational opportunity and
proximity to relatives, were reasonable and substantial;
Court of Appeals reiterates that 60%-40% split between parents does
not amount to substantially equal parenting time under relocation
statute; and
Court of Criminal Appeals holds defendants arrest for criminal
trespass based on exception to cite and release statute, which allows
for custodial arrest for misdemeanor when [t]here is a reasonable
likelihood that the offense would continue or resume, was proper.

WORKERS COMP APPEALS PANEL

WORKERS COMPENSATION: Employee failed to carry his burden of
proof of establishing that alleged work incident aggravated and/or
exacerbated his underling degenerative disc disease. Carter v. City of
Carthage, 6/16/15, Nashville, Summers, 10 pages.
http://www.tncourts.gov/sites/default/files/carterrandyv.carthage_opnjo.pdf

COURT OF APPEALS
TORTS: When crop sprayer was travelling east on rural public road, school
bus turned onto road travelling west, sprayer was able to pass school bus
without contact, but immediately after passing bus, shoulder gave way,
causing sprayer to veer into ditch, and plaintiff, as subrogee of owner of
sprayer, filed suit against Jackson Madison School System Board of
Education, evidence preponderated against trial courts finding that school
bus driver was negligent; evidence was insufficient to establish prima facie
elements of cause in fact and proximate cause when it was not fact that
sprayers tires were off pavement due to buss location that caused accident,
but rather fact that ground gave way at place where sprayer went into ditch;
there was no indication that after clearing bus, driver of sprayer attempted to
move sprayers tires back onto pavement, perhaps there was no time to do
so, but this would likely be due to sprayers speed, or lack of
maneuverability, and, regardless, drivers failure to correct sprayer back
onto road cannot be attributed to any action or inaction on part of driver of
school bus. Tennessee Farmers Mutual Insurance Co. v. Jackson Madison
School System Board of Education, 6/15/15, WS, Armstrong, 16 pages.
http://www.tncourts.gov/sites/default/files/tennessee_farmersopn.pdf

TORTS: When plaintiff, while visiting patient at defendant hospital, tripped

over feeding tube left near patients bed and fell, sustaining serious injuries,
plaintiffs filed suit against hospital, plaintiffs served hospital with pre-suit
notice of their intent to file suit, and trial court granted hospital summary
judgment, holding that plaintiffs action was ordinary negligence action based
on premises liability, not healthcare liability action, and that plaintiffs could
not rely upon TCA 29-26-121(c), which extends applicable statutes of
limitation and repose for 120 days when pre-suit notice is properly given, or
TCA 29-26-121(e), which provides that [i]n the event that a complaint is filed
in good faith reliance on the extension of the statute of limitations or repose
granted by this section and it is later determined that claim is not a health care
liability claim, the extension of the statute of limitations and repose granted by

this section is still available to the plaintiff, trial court correctly held that
plaintiffs claim sounds in ordinary negligence under premises liability theory,
but, because amendments to malpractice statute made application of ordinary
negligence/medical malpractice dichotomy potentially confusing and unclear
at time, and because both sides of this litigation tried case on mistaken, albeit
understandable, belief that definition of health care liability action found in
Tennessee Civil Justice Act of 2011 applies to case, position that trial court
picked up on and followed, plaintiffs filed their complaint in good faith
reliance on extension of applicable statute of limitation and are therefore
entitled to TCA 29-26-121(c)s 120-day extension. Coggins v. Holston Valley
Medical Center, 6/15/15, ES, Susano, 16 pages.
http://www.tncourts.gov/sites/default/files/coggins_v_holston_valley_med_ctr_.pdf

FAMILY LAW: In case in which parties were divorced in 2/14, mother was
designated primary residential parent of parties four children, and in 5/14,
mother provided father with notice of intent to relocate to Pennsylvania with
children, citing educational opportunity and proximity to relatives as reasons
for relocation, trial court erred in granting fathers petition in opposition to
relocation and in denying mothers request to relocate when mothers stated
purposes for relocating were reasonable and substantial although mother
did not have tangible job offer awaiting her following relocation, she would
be eligible for dual licensures following two years of schooling, as opposed
to speculative opportunity of qualifying for dual licensure at college in
Tennessee after approximately three years of schooling, mother preferred
Pennsylvania college for its accredited program and its integration of faith
into classroom, and mother wanted to maintain her role as primary caregiver
for children by attending classes during day, as opposed to attending classes
at night and depending on father, who has substantial work obligations;
evidence preponderated against trial courts determination that mothers
motive for relocating was vindictive in deciding that mothers motive was
vindictive, court focused primarily on timing of relocation letter, her desire
to gain assets and not liabilities from marriage, her refusal to communicate
with father other than by electronic means, her enrollment of children in
school without fathers permission, and difficulties inherent in exercising coparenting time as result of relocation when court gave mother five years to
establish herself before fathers alimony obligation expired, parents are not
required to maintain friendship or even communicate without aid of
electronic devices while in midst of divorcing or even after divorce becomes
final, mother was amenable to fathers attempts to connect with children,
and one of her motivations for seeking separation was fathers lack of
attention to family. Sanko v. Sanko, 6/16/15, ES, McClarty, 17 pages.
http://www.tncourts.gov/sites/default/files/sankoopn.pdf

FAMILY LAW: In case in which parties divorced in 5/09, father was

designated as primary residential parent of parties son, father subsequently
notified mother of his intent to relocate with child from Chattanooga to
Georgia, and mother filed petition in opposition to move, evidence did not
preponderate against trial courts decision allowing father to relocate with
child after determining that father was spending substantially more time with
child than mother; mothers proposed calculation method of parenting time
lumping together various scattered hours spent with child at sports practices or
at school, and dividing total by either under waking hours theory does not
comport with parent relocation statute, Child Support Guidelines definition of
a day, or case law precedent; trial court correctly held that 60%-40% split
between parents does not amount to substantially equal parenting time under
relocation statute. Helig v. Helig, 6/15/15, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/heilig_v_heilig_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of
especially aggravated kidnapping when defendants removal or confinement
of victim was not in the performance of an assault, and trial court noted
substantial duration of truck ride from Elizabethton to Jonesborough and
back and reasoned that confinement inside truck was not necessary for or
inherent in assault; because victim described defendants violent episode as
ongoing beating from Jonesborough to Talladega Apartments, issue would
be closer had incident ended there, but once couple returned to apartment
complex, victim overtly attempted to flee truck, but defendant grabbed her
hair, pulled her back inside, threatened her, and put his pocketknife to her
throat, and as such, accompanying felony, i.e., assault, was completed before
removal or confinement constituting kidnapping. State v. Johnson, 6/12/15,
Knoxville, Easter, 10 pages.
http://www.tncourts.gov/sites/default/files/johnsonrandyopn.pdf

CRIMINAL LAW: Defendants arrest for criminal trespass based on

exception to cite and release statute that allows for custodial arrest for
misdemeanor when [t]here is a reasonable likelihood that the offense would
continue or resume was proper officers encountered defendant when and
where trespass was being committed, and simply handing defendant citation
would not change ongoing trespass at that time and place; warrantless
discovery of pistol and other evidence in defendants vehicle, occasioned by
custodial detention, was valid; plain-view sighting of pistol provided officers
probable cause to seize and search defendants vehicle. State v. Hardin,
6/12/15, Knoxville, Witt, dissent by Thomas, 16 pages.
http://www.tncourts.gov/sites/default/files/hardinmalikopn.doc_1.pdf

SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: When stepchildren arranged for Cremation
Options, Inc. to cremate remains of their deceased stepfather by representing
to Cremation Options that they were decedents only children and, therefore,
had authority to permit cremation, decedent had three additional, biological
children (plaintiffs) who were religiously and culturally opposed to
cremation, plaintiffs were not informed of contract between Cremation
Options and stepchildren until after decedent was cremated, and plaintiffs
filed suit against Cremation Options, their step-siblings, additional family
members, and facility that actually carried out cremation under subcontract
with Cremation Options, and district court granted summary judgment to
Cremation Options solely on basis of TCA 62-5-707 and 62-5-708, holding
that statutes absolved Cremation Options of liability because it reasonably
relied on representations of stepchildren in proceeding with cremation,
district court committed plain error in applying TCA 62-5-707 and 62-5-708,
which were not effective until 4/25/12, six months after decedents remains
were cremated; case is remanded to district court for further proceedings,
including reconsideration of plaintiffs request to reopen formal discovery.
Capps v. Cremation Options Inc., 6/17/15, Daughtrey, 8 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0456n-06.pdf

PUBLIC CHAPTERS
PROPERTY: Regulation of practice of curbstoning when selling or
offering to sell motor vehicles. 2015 PC 344, effective 7/1/15, 4 pages.
http://share.tn.gov/sos/acts/109/pub/pc0344.pdf

CRIMINAL LAW: Individual may possess cannabis oil, containing less

than 0.9% of tetrahydrocannabinol, if person or persons immediate family
member has been diagnosed with intractable seizures or epilepsy. 2015 PC
352, effective 5/4/15, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0352.pdf

CRIMINAL LAW: Prevention of Youth Access to Tobacco and Vapor

Products Act makes it unlawful for individual under age 18 to possess either
tobacco or vapor product or to purchase or accept receipt of either product.
2015 PC 353, effective 7/1/15 & 1/1/16, 4 pages.
http://share.tn.gov/sos/acts/109/pub/pc0353.pdf

CRIMINAL PROCEDURE: Racial Profiling Prevention Act requires each

law enforcement agency to adopt written policy by 1/1/16 that prohibits
racial profiling by its employees. 2015 PC 335, effective 5/4/15, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0335.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Injured employee is not entitled to
temporary disability benefits if terminated for cause and employer was
reasonably capable of providing modified duty within restrictions assigned;
to be excused from this obligation, employer must demonstrate that
termination of employment involved breach of reasonable expectations of
employee and appears reasonably appropriate; when employee violated
associate handbook with regard to her use of label of co-worker that is not
common parlance employee used bitch word in verbal exchange with
co-worker but rather is inappropriate language, and when multiple lightduty jobs were available for employee during period of her restrictions,
employees request for past temporary disability benefits is denied. Dunlap
v. Elwood Staffing, 3/26/15, Switzer, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1072&context=utk_workerscomp

WORKERS COMPENSATION: Injured employee is not entitled to

temporary disability benefits if he or she is terminated for cause and
employer reasonably would have been able to provide modified duty
within restrictions assigned; employees claim for temporary disability is
denied when employer maintained policy that immediate discharge is
viable option for employer to exercise when employee falsifies company
documents, employees actions in clocking in at later time and different
location fit criteria for false documentation despite employees plea that
such action was mere absent-mindedness, and, technically, employee also
was sleeping on the job because he failed to clock out before retiring to
his personal vehicle to nap, and when employer could have accommodated
employee but for his termination for cause. Ricketts v. Dana Holding
Corp., 3/23/15, Phillips, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1074&context=utk_workerscomp

WORKERS COMPENSATION: When employee, maintenance

technician, was terminated for cause on 9/3/14 for falsifying company
documents and sleeping on job, prior to his termination, employee suffered
left shoulder injury on 8/3/14, employer accepted shoulder injury as
compensable, and after his termination, employee reported to employer that
he developed problems with his hands, there are too many factual
inconsistencies and questions regarding timing of employees reporting of

alleged carpal tunnel or other gradual injury to order panel for medical
evaluation; employee failed to demonstrate that he sustained injury arising
primarily out of and in course and scope of his employment with employer.
Ricketts v. Dana Holding Corp., 3/23/15, Phillips, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1073&context=utk_workerscomp

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