TAM-BYTES

April 4, 2016
Vol. 19, No. 14
TAM Webinars
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
Termination of Parental Rights in Tennessee: In re Carrington H. and
More, 60-minute audio conference presented by Kevin Shepherd,
Maryville attorney, on Tuesday, May 24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM 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.
For more information or to register call us at (800) 274-6774 or visit
www.mleesmith.com/tn-medical-malpractice-2016
***********************************************************

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;
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 or to register call us at (800) 274-6774 or visit
www.mleesmith.com/tn-business-law-2016

Tennessee Workers Compensation Physicians Conference, presented

by The Tennessee Bureau of Workers Compensation, to be held on
Saturday & Sunday, June 11-12, in Knoxville at the Embassy Suites
Knoxville/West.
19th Annual Tennessee Workers Compensation Educational
Conference, presented by The Tennessee Bureau of Workers
Compensation, to be held on Tuesday, Wednesday, & Thursday, June 21
through June 23, in Murfreesboro at the Embassy Suites Nashville SEMurfreesboro.
For additional information or to register for either of these events, contact
the IWCF at (386) 677-0041 or email IWCF@bellsouth.net

IN THIS WEEKS TAM-Bytes

Workers Comp Appeals Board, in case in which employee, while
traveling to work-related event at employers request, made brief
stop at fast-food restaurant and was injured when she slipped in
water as she was leaving restaurant, rejects employers argument
that two-prong analysis of arising out of and in the course of
employment has been expanded to three-prong test, with third
prong being in the scope of employment;
Court of Appeals, in suit in which plaintiff alleged that he received
improper medical care at hands of several defendants, holds
plaintiff waived his claims against resident physician employed by
state university by asserting claim against state under Claims
Commission Act and that waiver was activated by filing notice of
claim in Division of Claims Administration;
Court of Appeals holds that when trust agreement did not give
trustee power to agree to arbitration of unknown future claims or
disputes, signature of trustee on investment/brokerage account
agreement agreeing to arbitrate does not bind minor beneficiary of
trust to conduct arbitration of unknown future disputes or claims;
Court of Appeals says that because inclusion of decedents name on
appellees birth certificate evinces execution of voluntary
acknowledgement of paternity that constitutes legal finding of

paternity, appellees portion of decedents estate, which consisted

only of real property, vested in appellee upon decedents death;
Court of Appeals affirms trial courts elimination of husbands
obligation to pay wife transitional alimony of $1,000 per month
when wife sought to move to Pennsylvania based upon job
opportunity resulting in significantly increased income;
Court of Criminal Appeals says, in split decision, that defendants
convictions for attempted aggravated sexual battery in Count 1 and
rape of child in Count 3 should be merged when contact with
victims buttocks (as charged in Count 1) was merely incidental to
penetration of victims labia (as charged in Count 3);
Court of Criminal Appeals reverses conviction for initiation of
process to manufacture methamphetamine when there was no proof
that defendant entered shed where meth lab was located or that he
was present at home when lab was active, although defendant knew
lab was in shed and had taken meth earlier that day;
In DUI case, Court of Criminal Appeals affirms trial courts grant
of defendants motion to suppress blood test evidence as officers
unintentional failure to deliver copy of search warrant to defendant
was not clerical error; and
Sixth Circuit says officer had probable cause to stop defendants
van for violating TCA 55-8-124(a), i.e., following another vehicle
too closely, when defendant violated both car-length rule and
four-second rule set forth in Tennessee Comprehensive Drivers
License Manual.

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee, assistant accounts
receivable manager, was traveling from her home to clients location to
train clients personnel on use of employers software, while en route,
employee stopped at fast-foot restaurant to use restroom facility and
purchase breakfast, and as she was exiting restaurant to return to her car,
she slipped on wet floor and fell, preponderance of evidence supports
conclusion that employee is likely to prevail at hearing on merits in
proving that her employment contributed more than 50% in causing her
injury, considering all causes; there is no merit to employers argument
that traditional two-prong analysis of arising out of and in the course
of employment has been expanded to three-prong test, with third prong
being in the scope of employment; while legislature did not specifically

define word scope, phrase in which it appears is included in definition

of injury and is explained in TCA 50-6-102(14)(B); addition of words
and scope more fully explains time, place and circumstances analysis
traditionally employed by courts in considering course of employment
requirement; in evaluating whether injured workers accident arose out of
employment, critical question is whether employment more likely than not
caused accident in sense that accident had its origin in hazards to which
employee was exposed by reason of employment. Navyac v. Universal
Health Services, 3/31/16, Conner, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1379&context=utk_workerscomp

WORKERS COMPENSATION: When employees treating physician

placed him at maximum medical improvement on 10/15/15 and released
him from his care, treating physician informed employee on that date that
he had no further treatment to offer him, and treatment thereafter with
pain management specialist consisted of trying to control the pain,
conclusive presumption provided for in TCA 50-6-207(1)(E) that
employee is at maximum medical improvement when treating physician
ends all active medical treatment and only care provided is for treatment
of pain or for mental injury that arose primarily out of compensable
physical injury applied, making award of temporary disability benefits
staring on 11/11/15 error. Tolbert v. MPW Industrial Services Inc.,
3/24/16, Davidson, 25 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1370&context=utk_workerscomp

WORKERS COMPENSATION: When employee was injured in

course of employment and was subsequently terminated by employer,
employee was not entitled to temporary disability benefits as employee
was terminated for violating workplace rules employee, who was
operating backhoe, disobeyed order not to dig around gas line and
employee did not show that employer would not have provided light duty
work within employees restrictions had employee not been terminated for
cause. Shepherd v. Haren Construction Co., 3/30/16, Hensley, 22 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1377&context=utk_workerscomp

COURT OF APPEALS
TORTS: In suit in which plaintiff alleged that he received improper
medical care at hands of several defendants, plaintiff waived his claims
against resident physician employed by University of Tennessee by
asserting claim against state under Tennessee Claims Commission Act; in

non-tax cases, waiver is activated by filing of notice of claim in Division

of Claims Administration. Sumner v. Campbell Clinic PC, 3/29/16,
Jackson, Goldin, 20 pages.
http://www.tncourts.gov/sites/default/files/sumnertimothyopn.pdf

TORTS: In case in which affidavit of complaint was issued for Odom

for custodial interference, deputies visited Odom in order to take child
from her and return her to Odoms ex-husband, Odoms father (Phipps)
asked to see warrant prior to removal of child, deputies called assistant
district attorney (Sammons) who explained over speakerphone that
warrant was not necessary because there was court order for Odom to
return child to her ex-husband, during course of phone call, Odom
overheard Sammons use derogatory language when referring to her,
Odom was arrested for custodial interference, and nearly year later, Odom
and Phipps (plaintiffs) filed complaint against Sammons alleging
intentional infliction of emotional distress and civil conspiracy, fact that
Sammons called Odom jerk, troublemaker, and bitch, while
derogatory and inappropriate in nature, does not rise to high standard of
outrageousness necessary to sustain claim for intentional infliction of
emotional distress given that liability does not extend to mere insults,
indignities, or other trivialities; trial court correctly declined to find
implied cause of action for civil conspiracy in Tenn. Const. Art. I, Sec. 17,
when Tennessee courts have continuously determined that Tenn. Const.
Art. I, Sec. 17, does not create substantive right, only mechanism by
which citizen may redress grievances. Odom v. Claiborne County,
3/29/16, Knoxville, Susano, 10 pages.
http://www.tncourts.gov/sites/default/files/odom_v._claiborne_county.pdf

EMPLOYMENT: In suit by former state university police officer

against Tennessee State University (TSU), its governing board, and TSUs
chief of police alleging discrimination on basis of his sex, retaliation,
hostile work environment, and constructive discharge, trial court properly
granted summary judgment to TSU on claim for retaliatory discharge
arising under Tennessee Public Protection Act; trial court properly granted
summary judgment on plaintiffs claim for constructive discharge arising
under Title VII and Tennessee Human Rights Act (THRA); trial court
properly granted summary judgment as to five of seven incidents which
comprise plaintiffs claims of retaliation under Title VII and THRA; trial
court erred in granting summary judgment on claims of retaliation arising
from transfer to downtown campus and from multiple warnings he
received for tardiness; trial court erred in granting summary judgment as
to plaintiffs claim for hostile work environment arising under Title VII

and THRA with respect to numerous write-ups that he received. Hardy v.

Tennessee State University, 3/24/16, Nashville, Dinkins, 53 pages.
http://www.tncourts.gov/sites/default/files/hardy.kennethv.tsu_.opn_.pdf

ESTATES & TRUSTS: When language of trust agreement did not give
trustee power to agree to arbitration of unknown future claims or disputes,
signature of trustee on investment/brokerage account agreement agreeing
to arbitrate does not bind minor beneficiary of trust to conduct arbitration
of unknown future disputes or claims. Gladden v. Cumberland Trust &
Investment Co., 3/24/16, Knoxville, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/gladdenabopn.pdf

ESTATES & TRUSTS: In case in which decedent died intestate, and

decedents name was listed on birth certificate of appellee, who was born
out of wedlock, because inclusion of decedents name on appellees birth
certificate evinces execution of voluntary acknowledgement of paternity
that constitutes legal finding of paternity, appellees portion of decedents
estate, which consisted only of real property, vested in appellee upon
decedents death pursuant to TCA 31-2-103 and laws of intestate
succession, TCA 31-2-104; because appellees paternity was established
by decedent being listed as his father on birth certificate, appellee was not
required to file claim against estate appellee was already heir-at-law
pursuant to his birth certificate at time of decedents death. In re Estate of
Davis, 3/30/16, Nashville, Armstrong, 10 pages.
http://www.tncourts.gov/sites/default/files/inreestateofpatricktakashidavis.opn_.pdf

FAMILY LAW: Pursuant to TCA 37-1-159(a), circuit court has sole

jurisdiction to hear appeal flowing from dependency and neglect action.
State ex rel. Blandford v. Blandford, 3/24/16, Knoxville, Frierson, 9 pages.
http://www.tncourts.gov/sites/default/files/blandford_opinion_final.pdf

FAMILY LAW: Trial court did not err by eliminating husbands

obligation to pay wife transitional alimony of $1,000 per month when
wife sought to move to Pittsburgh, Pennsylvania, based upon job
opportunity resulting in significantly increased income, and wife has
substantial earning capacity and ability to work. Bidelman-Dye v. Dye,
3/29/16, Knoxville, McClarty, 14 pages.
http://www.tncourts.gov/sites/default/files/bidelmanopn_0.pdf

CIVIL PROCEDURE: When third party purchases secured property

from original converter in good faith, prejudgment interest should run
from date that plaintiff demands payment from third party, not from date

of conversion. BancorpSouth Bank v. 51 Concrete LLC, 3/28/16,

Jackson, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/bancorpsouthbankopn.pdf

GOVERNMENT: In case in which Shelby County Board of Education

(Board) appealed trial courts decision to reinstate tenured teacher whose
employment was terminated for inefficiency, Board failed to follow its
own policies before seeking termination of tenured teacher and there was
insufficient evidence in record to support finding of inefficiency; principal
did not develop and implement individual professional development plan
for teacher as required by Boards Professional Development Policy
before seeking termination of her employment. Harrison v. Shelby
County Board of Education, 3/30/16, Jackson, Armstrong, 10 pages.
http://www.tncourts.gov/sites/default/files/harrisonjacquelineopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of attempted
aggravated sexual battery, four counts of aggravated sexual battery, and
three counts of rape of child, trial court did not abuse discretion in
admitting testimony regarding defendants drinking when evidence had
some probative value to provide context and explain why victim decided
not to disclose abuse and why victims mother left marital home;
prejudicial effect that jury might conclude drinking to excess generally
leads to child sexual abuse was diminished because evidence was offered
to explain delay in reporting and victims move to another residence
evidence was not presented as cause of abuse; defendants convictions for
attempted aggravated sexual battery in Count 1 and rape of child in Count
3 should be merged when contact with victims buttocks (as charged in
Count 1) was merely incidental to penetration of victims labia (as
charged in Count 3). State v. Itzol-Deleon, 3/28/16, Nashville,
Montgomery, dissent by Easter, 54 pages.
http://www.tncourts.gov/sites/default/files/itzoldeleonchristopherscottieopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

initiation of process to manufacture methamphetamine when all of
evidence related to methamphetamine production was discovered in
separate shed location on McClains property, police testified that lab
appeared to be two days old, there was no evidence that defendant ever
entered shed or that he was present at McClains house when lab was
active, and only evidence purportedly linking defendant to meth lab was

that defendant was involved with Mr. McClain, that defendant admitted
the he knew lab was in shed, and that he had taken methamphetamine
earlier that day; because state failed to prove underlying dangerous felony,
i.e., initiation of process to manufacture methamphetamine, evidence was
not sufficient to support conviction for possession of firearm during
commission or attempt to commit dangerous felony; defendants
conviction for being felon in possession of firearm is reversed and
dismissed when defendant did not effectively waive his right to jury trial.
State v. Hammack, 3/31/16, Nashville, Holloway, 11 pages.
http://www.tncourts.gov/sites/default/files/hammackchristopher.pdf

CRIMINAL PROCEDURE: In case in which defendant was indicted on

charges of DUI, trial court properly granted defendants motion to suppress
blood test evidence in case when police officers failure to deliver copy of
search warrant to defendant, albeit unintentionally, was not clerical error
under TCA 40-6-108, Exclusionary Rule Reform Act (ERRA); pursuant to
ERRA, definition of good faith mistake or technical violation includes
only those errors and omissions that were clerical, and legal definition of
clerical error refers to mistake in writing such as unintentional
typographical error or omission in writing, but there is no indication that
legislature intended for ERRA to permit admission of evidence that was
obtained when state completely failed to deliver copy of search warrant to
defendant. State v. Daniel, 3/29/16, Nashville, Ogle, 7 pages.
http://www.tncourts.gov/sites/default/files/danielangelafayeopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: In case in which Vanterpool was killed
after two Memphis police officers fired seven shots into front and rear
windows of vehicle Vanterpool was operating, and Vanterpools estate
filed suit against, among others, Armstrong, Director of Memphis Police
Department, under 42 USC 1983, district court properly denied
Armstrongs motion to dismiss claim against him in his individual
capacity on ground of qualified immunity; viewing allegations in light
most favorable to estate, complaint adequately alleges the commission of
acts that violated clearly established law; Armstrongs alleged conduct of
rubber stamping behavior of officers who shot and killed individuals
with increasing frequency could be reasonably expected to give rise to
just the sort of injuries that occurred, i.e., Vanterpools unfortunate
death. Peatross v. City of Memphis, 3/29/16, Keith, 16 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0074p-06.pdf

CRIMINAL PROCEDURE: Officer had probable cause to stop

defendants van for violating TCA 55-8-124(a), i.e., following another
vehicle too closely; although no criminal cases from Tennessee courts
delineate standard for what constitutes reasonable and prudent
following distance under TCA 55-8-124(a), Tennessee Comprehensive
Drivers License Manual sets forth car-length rule (vehicles should
maintain at least one car length for every ten miles per hour of velocity)
and four-second rule (during interstate highway driving at higher
speeds, vehicles should maintain minimum following distance of four
seconds), and given that defendant violated both car-length rule and
four-second rule, defendant was in violation of TCA 55-8-124(a); under
circumstances, 21 minutes was not unreasonable amount of time for
officer to complete traffic stop, and officers were justified in continuing
their investigation beyond 21 minutes needed to complete traffic stop;
although nervousness alone was insufficient for probable cause,
nervousness of passenger, along with her erratic movements and deceptive
behavior, could reasonably lead officer to conclude that she was under
influence of stimulant, and provided ample evidence to conclude that
officers possessed probable cause to search defendants van. United States
v. Collazo, 3/29/16, Gilman, 17 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0075p-06.pdf

TRIAL COURTS
PROPERTY: Commencement by REO Holdings, LLC, of enrolling
Alabama judgment in Tennessee, on same day it filed its Notice of
Redemption of property from tax sale purchaser, did not satisfy statutory
criterion of having a lien on the property in light of 30-day waiting
period for enrollment. Metropolitan Government of Nashville v.
Delinquent Taxpayers as Shown on 2011 Real Property Tax Records of
Metropolitan Government of Nashville, 1/27/16, Davidson Chancery,
Lyle, 23 pages.

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, while walking
around vertical pins supporting concrete forms, caught her slacks on pin
and fell, injuring her right shoulder, law required employer to report

accident and injury to its insurer, at very latest when employee sought
medical treatment, and employer failed to do so because employee told
employer she could not pass drug test and employer feared she might have
to fire employee if she tested positive for marijuana, employers failure to
report and acquiescence in employees pursuit of treatment under her
private health insurance resulted in violation of law and exposed employer
to possible civil penalties; while employees request that employer not
report her injury raises questions about whether she was under influence
of drugs at time, suspicion is insufficient to carry employers burden of
proving that employee was intoxicated, much less that her intoxication
proximately caused her to trip and fall; when employer knowingly
allowed employee to select physician from Tennessee Orthopedic
Alliance (TOA) and seek treatment under her private health insurance,
and assisted employee in receiving care through TOA by providing
contact information, employer failed to provide three-physician panel as
required by TCA 50-6-204(3)(a)(i) and must cover cost of all care
previously provided by TOA doctor and reimburse employee for all outof-pocket co-pay expenses. Hall v. Fisher Installations LLC, 10/26/15,
Nashville, Baker, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1219&context=utk_workerscomp

FORMAL ETHICS OPINION

PROFESSION OF LAW: While lawyer should retain client files for five
years after termination of representation, this guideline may be altered by
client agreement and/or type of representation and contents of file.
Formal Ethics Opinion 2015-F-160(a), 3/11/16, 2 pages.
http://www.tbpr.org/ethic_opinions/2015-f-160-a-client-files

REVENUE RULING
TAXATION: Application of Tennessee sales and use tax to use of
taxpayers software services. Department of Revenue Letter Ruling 1602, 3/8/16, 7 pages.
http://www.tn.gov/assets/entities/revenue/attachments/16-02.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