TAM-BYTES

March 21, 2016

Vol. 19, No. 12

TAM Webinars
Contract Negotiation Strategies for Business Buyers and Sellers in
Tennessee, 60-minute webinar presented by Nathan L. Barrett, with
Cody Allison & Associates, in Nashville, on Wednesday, April 6, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Mechanics and Materialmens Lien Act: What Attorneys
Must Know, 60-minute webinar presented by Chris Dunn & Joe
Watson, with Waller, Lansden, Dortch & Davis, in Nashville, on
Thursday, April 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Data Breach and Privacy Law: What Tennessee Attorneys Must
Know, 60-minute webinar presented by Russell Taber, with Riley
Warnock & Jacobson, in Nashville, on Tuesday, April 26, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Types of Damages in Personal Injury Suits: Essential Practice Tips
for Tennessee Attorneys, 60-minute webinar presented by Brad
Gilmer, with The Hardison Law Firm in Memphis, on Thursday, April
28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for

Tennessee Attorneys
WHEN: Friday, May 13
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;
Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood
HIGHLIGHTS: Recent developments in pre-suit notice and certificate
of good faith requirements; new summary judgment procedure; how to
turn the tables on a plaintiffs expert; defenses, such as patient
negligence, that may be raised to defeat a plaintiffs healthcare liability
claim; trial tips and tactics from both a plaintiffs and defense perspective;
deposition strategies to help you win at trial; using technology to excel as
an advocate in a healthcare liability case; review of recent healthcare
liability appellate court decisions; a panel discussion of hot topics in
healthcare liability actions; and ethical issues that arise when dealing with
evidence and experts.

Tennessee Business Law Conference

WHEN: Friday, May 20
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,
Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph

Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs

Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues in the Tennessee
Business Court Pilot Project; creative practices for handling business
disputes to avoid litigation; mistakes to avoid in drafting LLC operating
agreements; what every attorney needs to know when litigating a business
dispute in Tennessee; what federal tax issues arise when operating a
limited liability company; key issues in drafting an acquisition agreement;
top 10 negotiation strategies for obtaining a settlement in a business
dispute; and ethics for attorneys in business disputes including adequacy
of fees and charges.
For more information call us at (800) 274-6774 or visit www.mleesmith.com.
IN THIS WEEKS TAM-Bytes
Supreme Court says because TRCrP 16, which provides for release
of certain information to defendant in criminal case, does not
authorize release of any information to non-party, only defendants,
and not public, may receive information contained in police
investigative files during pendency of criminal case(s) and any
collateral challenges to any convictions;
Supreme Court adopts harmless error analysis in Allen for
ineffective assistance of counsel claims arising from failure to
properly request jury instructions on lesser included offenses when
jury was given no option to convict of any lesser included offense;
Workers Comp Panel rules statute of limitation barred claim for
hearing loss by employee who waited two years after last day of
work to file claim;
Workers Comp Appeals Board affirms denial of claim of home
healthcare nurse who was injured in accident while driving home
after abandoning effort to travel to patients residence because of
inclement weather;
Court of Appeals affirms ruling that city was immune from liability
under public duty doctrine in suits resulting from police officer
arresting suspect and placing her in police car, suspect stealing

police car, and suspect, while driving at high rate of speed,

colliding with another vehicle, killing one occupant and injuring
three occupants;
Court of Appeals, in will contest by decedents wife and children,
rules that although confidential relationship was proven between
decedent and his mother, clear and convincing evidence rebutted
presumption of undue influence;
When mother filed petition to modify fathers child support
obligation, Court of Appeals rules juvenile court abused discretion
by refusing to award mother any of her attorney fees when there
was large disparity between income of mother and father, and if
mother were required to pay entirety of her attorney fees, it would,
in effect, reduce amount of support received and operate to
detriment of child; and
In murder case, Court of Criminal Appeals rules trial court did not
abuse discretion by admitting testimony concerning three prior acts
of domestic violence committed by defendant against victim.

SUPREME COURT
GOVERNMENT: In case in which petitioners, group of media
organizations and citizens group, filed request under Tennessee Public
Records Act (Act) to inspect police files regarding police departments
investigation of alleged aggravated rape of Vanderbilt University student
by four university football players occurring in university dormitory, based
on TRCrP 16, petitioners have no right to requested information during
pendency of criminal cases and any collateral challenges; Tennessee Rules
of Criminal Procedure constitute state law exceptions to Act, and TRCrP
16, as state law, controls release of investigative records at issue and
provides for access to records only to parties to criminal case, i.e., State
and defendant(s). Tennessean v. Metropolitan Government of Nashville,
3/17/16, Nashville, Lee, dissent by Wade, concurrence by Kirby, 35 pages.
http://www.tncourts.gov/sites/default/files/thetennessean.opn_.pdf
http://www.tncourts.gov/sites/default/files/thetennessean.disopn.pdf
http://www.tncourts.gov/sites/default/files/thetennesseean.conopn.pdf

CRIMINAL PROCEDURE: When trial court did not know about

statutes amendment, effective approximately one month prior to
petitioners trial, requiring written request for lesser included offense

instructions, counsels decision to forgo requesting instruction on any

lesser included offenses, except facilitation, was not informed choice
based upon adequate preparation, and hence, deficient; harmless error
analysis in Allen is adopted for ineffective assistance of counsel claims
arising from failure to properly request jury instructions on lesser included
offense instruction where jury was given no option to convict of any lesser
included offense; in case in which defendant was convicted of aggravated
burglary and multiple counts of aggravated rape, especially aggravated
kidnapping, and aggravated robbery in connection with home invasion,
omitting lesser included offense instruction was harmless beyond
reasonable doubt because jury, if given opportunity, would not have
convicted petitioner of any of asserted lesser included offenses instead of
charged offenses; because omitting these lesser included offense
instructions was harmless beyond reasonable doubt, any deficiency of trial
counsel resulting in absence of these instructions cannot be prejudicial.
Moore v. State, 3/16/16, Jackson, Lee, 4-0, 16 pages.
http://www.tncourts.gov/sites/default/files/moorerashe.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee worked for employer
from 1988 until 2009, he filed Request for Benefit Review Conference
alleging compensable hearing loss on 10/11/11, he died on 11/13/13, and
his estate filed suit on 2/7/14, trial court properly ruled that action was
barred by statute of limitation; there is no absolute rule that doctors
opinion connecting injury to employees work is only factor that can be
considered as starting point for statute of limitation; general rule is that
statute of limitation begins to run when through exercise of reasonable
care and diligence it becomes discoverable and apparent that employee
sustained compensable injury; proof was sufficient to permit inference
that employee knew he had work-related injury by time he left work in
2009 when he had significant hearing loss before being hired by
employer, subsequent tests through years showed his condition gradually
got worse, and he signed yearly report indicating that test results were
discussed with him; reasonably prudent person, knowing that he had
significant hearing loss, which got worse through 21 years of
employment, would not wait until two years after last day of work to take
any action, and would have sought medical advice before various periods

of limitation ran. Estate of Jenkins v. Goodyear Tire & Rubber Co.,

3/15/16, Memphis, Cantrell, 7 pages.
http://www.tncourts.gov/sites/default/files/jenkinsopn.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee, home healthcare
nurse, left her home en route to work assignment 75 miles away,
employee decided to abandon her trip due to dangerous driving conditions
and return home, she stopped at store to get fuel and call employer to
advise that she would not make assignment, and upon resuming route, she
was involved in accident, evidence did not preponderate against trial
courts conclusion that employee was not within course of employment at
time of accident; employee was not traveling employee, and
circumstances of her accident did not come within any exception to
general going to and coming from work rule when employees work
required that she have access to reliable vehicle, employee was not
reimbursed mileage expenses or otherwise compensated for expense of
travel to or from home, she was not compensated for her time while
traveling to or from her home, and her 12-hour shift began upon her
arrival at patients home and ended upon her departure from patients
home. Dugger v. Home Health Care of Middle Tennessee LLC, 3/16/16,
Hensley, 21 pages.

COURT OF APPEALS
TORTS: When police officer arrested suspect and placed her in his police
car, suspect stole police car and, while driving at high rate of speed,
collided with another vehicle, killing one occupant and severely injuring
three occupants, and suits were filed against City of Fayetteville (City)
and others, trial court properly ruled that City was immune from suit
based upon public duty doctrine; pursuit statute, TCA 55-8-108, did not
create special duty when suspect was neither responding to emergency
call nor in pursuit of actual or suspected violator of law; even if plaintiffs
had alleged violation of TCA 55-8-162, prohibiting leaving vehicle
unattended without stopping engine, statute does not specifically provide
for cause of action against official or municipality for injuries resulting to

particular class of individuals. Holt v. City of Fayetteville, 3/15/16,

Nashville, McBrayer, 9 pages.
http://www.tncourts.gov/sites/default/files/henryholtsr.opn_.pdf

ESTATES & TRUSTS: When decedents will attempted to disinherit his

wife and two children and instead provided for decedents property to be
equally divided among five other relatives, and wife and children filed
complaint to contest will alleging that it was procured by undue influence,
totality of evidence supported probate courts finding that decedents
mother had confidential relationship with decedent when in addition to
holding power of attorney for decedent, decedent also had appointed
mother as his healthcare agent, decedent was living in mothers home,
mother was caring for decedent physically by providing him with meals
and assistance with medical needs, mother transported decedent to medical
appointments, his attorneys office and insurance company because
decedent was unable to drive, and mother assisted decedent with financial
activities such as paying decedents bills; despite confidential relationship,
clear and convincing evidence rebutted presumption of undue influence
when decedent was mentally competent, mother did not make appointment
for decedent to meet with attorney, decedent was filing for divorce from
wife, and decedent had expressed to multiple people that he was upset with
wife and daughters for not visiting him more often during his illness. In re
Estate of Davis, 3/14/16, Knoxville, Swiney, 33 pages.
http://www.tncourts.gov/sites/default/files/inreestateofterrypauldavisopn.pdf

FAMILY LAW: Trial court erred in terminating parental rights of childs

putative biological father on ground of failure to establish paternity to
child under TCA 36-1-113(g)(9)(A) when, pursuant to In re Bernard T.,
319 SW3d 586 (Tenn. 2010), grounds contained in statute do not apply
when defendant parent is putative biological father; In re Bernard T.
deemed putative biological father on par with legal parent or guardian
and, therefore, declined to apply grounds contained in TCA 36-1113(g)(9)(A) to putative biological fathers and relegated grounds in
statute as applying only to those parents whose claims to children are so
gossamer as to be virtually non-existent. In re Ashton B., 3/15/16,
Jackson, Stafford, 25 pages.
http://www.tncourts.gov/sites/default/files/inreashtonbopn.pdf

FAMILY LAW: Evidence was not sufficient to support termination of

fathers parental rights to his son on ground of abandonment by willful
failure to support when father, during relevant four-month period, was not

employed but was receiving SSI benefits, and SSI benefits are not subject
to legal process for payment of court-ordered child support; evidence was
sufficient to terminate fathers parental rights on grounds of abandonment
by failing to provide child with suitable home and substantial noncompliance with requirements of permanency plans. In re Benjamin A.,
3/14/16, Knoxville, Frierson, 36 pages.
http://www.tncourts.gov/sites/default/files/benjamin_a_opinion_final.pdf

FAMILY LAW: In case in which mother filed petition to modify fathers

child support obligation, and juvenile court affirmed magistrates
recommendation to increase fathers child support obligation, juvenile
court abused discretion by refusing to award mother any of her attorney
fees; in awarding attorney fees pursuant to TCA 36-5-103(c), trial court
may consider proof of parties inability to pay such fees and whether one
party is at economic disadvantage in comparison to other; because there is
large disparity between income of mother and father fathers monthly
gross income is $9,783, while mothers income is only $1,577 if mother
were required to pay entirety of her attorney fees, it would, in effect,
reduce amount of support received and operate to detriment of parties
child; on remand, juvenile court is instructed to award mother attorney
fees she incurred in pursuit of her petition for modification of child
support and defending against fathers counter-petition for custody, both
at trial level and on appeal. In re Jasmine G., 3/16/16, Nashville,
Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/inrejasmineg.opn_.pdf

FAMILY LAW: In case in which parties were divorced in 2006, under

parties marital dissolution agreement (MDA), husband was given right to
reside in marital residence until property was sold this right was subject
to monthly payment equal to a monthly portion of the prime interest rate
on the $460,000.00, effective upon expiration of four years following
entry of divorce judgment property was never offered at auction because
parties could not agree on reserve price, in 8/13, wife secured offer for
sale of property at price of $925,000, but husband opposed sale, trial court
approved sale and affirmed wifes authority to convey property without
husbands approval, and trial court imposed rental obligation on husband
in amount of $3,000 per month for husbands continued occupancy of
property, to extent that courts imposition of rent exceeded amount
imposed upon husband in MDA, court was in error; trial courts judgment
is modified to reflect imposition of rent that conforms to MDA

husbands obligation to pay rent is in addition to his obligation to remit

payment for property taxes and insurance and to ensure reasonable
maintenance and upkeep of property pursuant to terms of contract; given
failure of either party to secure sale of property in almost 10 years since
entry of final judgment of divorce and unique nature of property, trial
court properly set reserve price for sale of property as indicative of fair
market value. Granoff v. Granoff, 3/16/16, Knoxville, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/granoffopn.pdf

CIVIL PROCEDURE: When insurer, having paid its insured and

passenger under insureds uninsured motorist provision, filed civil warrant
in general sessions court on 5/17/10 to recover property damages against
other driver, insurer unsuccessfully sought to amend warrant to seek
damages for personal injuries, insurer voluntarily dismissed case and
refiled action in general sessions court on 1/31/12, general sessions court
dismissed case, and insurer appealed to circuit court, circuit court properly
ruled that insurer was barred by statute of limitation from recovering
damages for personal injuries; saving statute, TCA 28-1-105, did not
permit insurer to refile previous action and rely upon the original filing
of the lawsuit to toll statute of limitations, such that insurer could add
claim for personal injuries; evidence did not preponderate against trial
courts allocation of 20% of fault to insured and 80% of fault to other
driver. State Farm Mutual Automobile Insurance Co. v. Blondin,
3/14/16, Nashville, Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/statev.robertblondin.opn_.pdf

GOVERNMENT: In case in which Tennessee Department of Health

(Department) mailed notice to physician of alleged violations of
Tennessee Medical Practice Act, physician retired his Tennessee medical
license, but Department filed notice of charges, after hearing, in which
physician did not appear, Tennessee Board of Medical Examiners (Board)
revoked physicians medical license and placed conditions on any future
application by physician for medical license in Tennessee, and chancellor
affirmed Boards decision, Department properly obtained service by mail
on physician; service by certified mail was sufficient despite
Departments failure to obtain return receipt signed by physician when
TCA 63-1-108(d) does not specify necessity for return receipt; Board had
personal jurisdiction over physician despite fact that he had moved his
medical practice to Florida when conduct about which Department
complained all took place in Tennessee; Board possessed authority to

revoke retired medical license. Wyttenbach v. Board of Tennessee

Medical Examiners, 3/15/16, Nashville, McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/wyttenbachwilliam.opn_.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of first degree
premeditated murder of victim, with whom defendant had long-time
romantic relationship, trial court did not abuse discretion by admitting
testimony concerning three prior acts of domestic violence committed by
defendant against victim as testified to at trial by victims mother when
evidence was relevant to issue of defendants intent and motive in
strangling victim and probative to issue of premeditation. State v. Moody,
3/15/16, Jackson, Woodall, 29 pages.
http://www.tncourts.gov/sites/default/files/moodylakeithopn.pdf

TRIAL COURTS
COMMERCIAL LAW: In suit by plaintiff physician to establish that he
remains limited partner in defendant partnership, based upon text of
Separation Agreement and Mutual Release (SA) and not considering
extrinsic circumstances, plaintiff did not settle and release his claim that
defendants right of redemption has expired (Expiration Claim) in SA;
plaintiffs Expiration Claim does not come within purview of arbitration
clause of partnership agreement but, instead, cones within venue selection
clause of SA because Expiration Claim became ripe after and was
triggered by controversy arising out of SA. Edwards v. Urosite Partners,
11/4/15, Davidson Chancery, Lyle, 9 pages.
https://www.tncourts.gov/docs/documents/trial-court/business-court-sustantive-memoranda-robert-h-edwards-md-vurosite

COMMERCIAL LAW: Final order is amended to allow plaintiff

recovery of attorney fees and expenses under contractual indemnity claim;
Colonial Pipeline Co. v. Nashville & E.R.R. Corp., 253 SW3d 616
(Tenn.App. 2007), does not establish Tennessee standard regarding
indemnity provisions; if there is any standard or rule under Tennessee law
regarding indemnity provisions not being construed to apply to interplay
disputes, it is only absurd result circumstance. Individual Healthcare

Specialists Inc. v. BlueCross BlueShield of Tennessee Inc., 12/22/15,

Davidson Chancery, Lyle, 15 pages.

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Employee, masonry worker who was
paid by hour only for hours he was on worksite, was not in course and
scope of his employment when he was injured in automobile accident
after work when he was not on employers premises or working for
employer when he suffered injury. Silva v. Shouse, 10/9/15, Kingsport,
Addington, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1207&context=utk_workerscomp

WORKERS COMPENSATION: Employee came forward with

sufficient evidence to conclude that he is likely to prevail at hearing on
merits regarding notice when he properly reported work injury to his back
to his immediate supervisor at conclusion of his shift and when employer
filed First Report of Injury and required employee to submit to postaccident drug test; employee is entitled to temporary total disability,
excluding 11/9/14 through 11/18/14 and 2/4/15 through 3/29/15, when
doctors placed him off work most weeks between 11/5/14 and 3/30/15;
employees termination was improper when employee testified that he
specifically told general manager that he was not resigning when he
picked up his toolbox, and employee is entitled to temporary permanent
disability from 3/30/15 and ongoing until released without restrictions by
authorized treating physician, is able to resume gainful employment, or
until placed at maximum medical improvement; employee was justified in
seeking medical treatment on his own when employer failed to timely
offer panel of physicians, but employee did not offer any proof as to
reasonableness of medical charges incurred, and thus, his request for
payment of these charges is denied at this time. Miller v. TA Operating
Corp., 10/12/15, Jackson, Luttrell, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1206&context=utk_workerscomp

WORKERS COMPENSATION: Employees unsigned and unsworn

affidavit does not meet requirements of affidavit under Rule 0800-0221-.14(1)(a) and TRCP 72, and, hence, her request for Expedited
Hearing is denied. Sirkin v. Trans Carriers Inc., 10/12/15, Memphis,
Umsted, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1208&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