TAM-BYTES

November 21, 2016

Vol. 19, No. 47
TAM Webinars
Best and Worst of Witness Examinations, 60-minute webinar presented by
Matt Glover, with Prince Glover & Hayes in Tuscaloosa, on Thursday,
February 2, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
The Tennessee Attorneys Update on the Revised Uniform Fiduciary
Access to Digital Assets Act, 60-minute webinar presented by Rebecca Blair,
with The Blair Law Firm in Brentwood, on Thursday, February 16, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

IN THIS WEEKS TAM-Bytes

Supreme Court holds that Drug-Free School Zone Act does not apply
to conviction for facilitation;
Court of Appeals, in reversing trial courts finding that mother did not
have reasonable purpose in relocating with child from Tennessee to
Colorado, says that while mothers job prospects must be more than
mere hope or belief, they need not be absolute certainty, and
mothers job opportunity in Colorado was not speculative or uncertain
enough to justify trial courts decision;
Court of Appeals rules trial court abused discretion by entering default
judgment based on service of process by mail with return receipt
marked unclaimed;
Court of Appeals holds TCA 20-12-119(c), which provides for award
of reasonable attorney fees to dismissed party when trial court grants
motion to dismiss pursuant to TRCP 12.02(6) for failure to state claim
upon which relief may be granted, does not violate separation of
powers doctrine in Tennessee Constitution;

 Court of Criminal Appeals, in DUI case, rules defendants due process

rights were not violated by destruction of defendants blood sample
little over one year after her arrest; and
Attorney general says municipal ordinance, which allows police
officer to issue municipal citation carrying civil penalty of $50 or
community service for offense of possession of .5 ounce or less of
marijuana, cannot stand.
SUPREME COURT
CRIMINAL LAW: Drug-Free School Zone Act does not apply to
conviction for facilitation; in case in which defendant was convicted of
facilitation of possession with intent to deliver .5 gram or more of cocaine
within 1,000 feet of school, trial court erred by increasing defendants felony
classification and by requiring service of entire minimum sentence; evidence
was sufficient to convict defendant of facilitation of possession with intent to
deliver .5 gram or more of cocaine when any rational trier of fact could
reasonably have found that defendant was furnishing substantial assistance
to drug dealer with close connection to home where drugs were found. State
v. Gibson, 11/16/16, Nashville, Lee, Page not participating, 13 pages.
http://www.tncourts.gov/sites/default/files/gibsons.opn_.pdf

COURT OF APPEALS
FAMILY LAW: Trial court erred in finding that mother did not have
reasonable purpose in relocating with child from Tennessee to Colorado for
her employment when trial court, in finding no reasonable purpose, focused
almost exclusively upon mothers prospective employer, reasoning that
courts impose implicit requirement that there be some certainty with
respect to the entity making the offer of employment; while mothers job
prospects must be more than mere hope or belief, they need not be
absolute certainty, and mothers job opportunity in Colorado was not
speculative or uncertain enough to justify trial courts decision although
mothers prospective employer (Younkes) had no experience in particular
type of business being developed, i.e., consulting services to hospital
patients in connection with reducing their morbidity percentage at medical
institutions through prevention of sepsis, Younkes had experience with startup companies and had already contributed substantial capital and raised
additional capital for venture at issue, and mother had developed other job

opportunities in Colorado, while only job mother had found in Chattanooga

area (including North Atlanta), out of hundreds of jobs for which she
applied, was job at ADS Security paying $45,000 per year. Mouton v.
Mouton, 11/16/16, Knoxville, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/moutoncopn.pdf

CIVIL PROCEDURE: Trial court abused discretion by entering default

judgment based on service of process by mail with return receipt marked
unclaimed; TRCP 4.04(1) expressly states that default judgment cannot be
based on service of process by mail unless record contains return receipt
showing personal acceptance by defendant; plaintiff contended that
defendant, in submitting filing in opposition to its motion for default
judgment that expressly acknowledged not only the proceeding but the
particular motion, made general and unlimited appearance which
effectively cured any defect that may have existed with service, but actual
notice of suit is not substitute for service of process when Tennessee Rules
of Civil Procedure so require. Regions Bank v. Sandford, 11/16/16,
Nashville, Goldin, 6 pages.
http://www.tncourts.gov/sites/default/files/regions_bank_v_sandford.opn_.pdf

CIVIL PROCEDURE: TCA 20-12-119(c), which provides for award of

reasonable attorney fees to dismissed party when trial court grants motion to
dismiss pursuant to TRCP 12.02(6) for failure to state claim upon which
relief may be granted, does not create different standard for pro se litigants
and does not violate separation of powers doctrine; requirements of TCA 2012-119(c) do not impede authority of court to change its schedule in order to
give party additional time to amend its pleading when justice so requires, nor
does statute impair courts discretion to determine questions of fact or law,
and hence, there is no conflict between TCA 20-12-119(c) and TRCP 15.01,
15.04, 11.04, and 12.04; by time TCA 20-12-119(c) comes into play, trial
court has already determined, based on facts, that case should be dismissed
based on failure to state claim, and as such, statute is remedial and does not
violate separation of powers doctrine as established by Tenn. Const. Art. II,
Sec. 2. Tran v. Bui, 11/17/16, Knoxville, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/tran_v_bui_opinion_11-8-2016.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of aggravated child
neglect, trial court did not err by admitting into evidence statements made by
victim and victims mother to nurse practitioner at hospital when nurse

testified that she was conducting medical evaluation not investigation, her
questions about nature of injury and circumstances under which it was
caused were intended to elicit information that any physician would utilize
in diagnosing and treating injuries to child, and statements made by victims
mother describing victims injuries and steps taken to provide treatment
prior to hospitalization were relevant to diagnosis and treatment; statements
made to physician identifying perpetrator who is member of childs
household may be reasonably pertinent to proper diagnosis and treatment of
emotional and psychological injury. State v. Pewitte, 11/14/16, Nashville,
Easter, concurrence by Ogle, 23 pages.
http://www.tncourts.gov/sites/default/files/pewitteantonioterrellopn.pdf

CRIMINAL LAW: In second degree murder case, prefatory phrase [i]f

evidence has been introduced supporting self-defense in trial courts selfdefense instruction did not shift burden of proof from state to defendant; trial
court did not err in rejecting defendants request for special instruction on
states burden of proof as to lesser included offenses. State v. Ferrell,
11/18/16, Nashville, Thomas, 29 pages.
http://www.tncourts.gov/sites/default/files/ferrellchristopheropn.pdf

CRIMINAL PROCEDURE: In DUI case, defendants due process rights

were not violated by destruction of defendants blood sample little over one
year after her arrest when state did not have duty to preserve blood past date
it was destroyed, and defendant was on notice regarding possible destruction
of sample well before evidence was destroyed; presence of prescription
Ambien in defendants blood was not apparently exculpatory and would not
have been relevant to negating any mental state, both because offense is
strict liability offense and because defendant whose intoxication results
from knowingly ingesting a prescription drug and alcohol cannot avail
himself of the involuntary intoxication defense. State v. Blair, 11/16/16,
Nashville, Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/blairgraceann.opn_.2.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When shoplifter stabbed employee,
assistant manager, in throat, employee received authorized medical
treatment from Erlanger Medical Center (Erlanger) and Dr. Smith, and
employee alleges he developed PTSD and obtained psychiatric treatment on
his own from Dr. Skidmore, psychologist, employee did not demonstrate
that he is likely to prevail at hearing on merits to establish he sustained

aggravation of his pre-existing PTSD condition due to stabbing incident

when Smith, authorized treating physician, neither diagnosed PTSD nor
made any referral for psychiatric treatment, employee sought treatment on
his own with Skidmore, who opined during expedited hearing that stabbing
incident was undoubtedly the cause of his PTSD, but, as documented by
Erlanger records, employee failed to disclose his past PTSD condition to her,
and since Skidmore relied upon incomplete information provided to her by
employee, she was not able to provide informed opinion regarding his PTSD
condition. Johnson v. Family Dollar Stores Inc., 8/1/16, Chattanooga,
Headrick, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1499&context=utk_workerscomp

WORKERS COMPENSATION: When employee, production operator,

sustained work-related injury to her left hand on 9/12/14 after slipping on
wet floor, she filed compliant with TOSHA due to hazardous condition that
allegedly caused her fall, and on or about 11/3/15, she had emotional
breakdown at work that she related to pain from her compensable hand
injury as well as to alleged harassment and disparate treatment by
management after she filed TOSHA complaint, employee presented
insufficient evidence to determine she is likely to prevail at hearing on
merits regarding her claim for mental injury; employee did not show her
mental injury primarily arose out of 9/12/14 hand injury or that referral for
psychological or psychiatric services was ever made; employee did not show
identifiable sudden or unusual stimulus that could be cause of her alleged
mental injury, as required by TCA 50-6-102(17) when employee testified
she could not identify any one particular event that caused her mental injury
but stated all of harassment at work over period of several months caused it.
Valentine v. Kellogg Cos., 8/9/16, Memphis, Umsted, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1507&context=utk_workerscomp

ATTORNEY GENERAL OPINION

CRIMINAL LAW: Municipal ordinance, which allows police officer to issue
municipal citation carrying civil penalty of $50 or community service for
offense of possession of .5 ounce or less of marijuana, cannot stand because it
conflicts with provisions of Tennessee Drug Control Act
(Act) and with prosecutorial discretion and responsibilities of district attorneys
in enforcing Act. Attorney General Opinion 16-40, 11/16/16, 9 pages.
http://www.tn.gov/assets/entities/attorneygeneral/opinions/op16-040.pdf

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may also view and download the full text of any state appellate court
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http://www.tncourts.gov