TAM-BYTES

March 6, 2017
Vol. 20, No. 10

TAM Webinars

Trust Instead of A Will? The Crucial Client Counsel Update for

Tennessee Attorneys, 60-minute webinar presented by David Heller,
with Martin, Heller, Potempa & Sheppard, LLC in Nashville, on
Wednesday, April 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/trusts-041917 or call us at
(800) 727-5257.

Email, Social Media, Texts, and Video: How to Find and Use
Electronic Evidence to Win Your Case, 60-minute webinar presented by
Russell Taber, with Riley, Warnock & Jacobson, PLC in Nashville, on
Thursday, April 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/social-042017 or call us at
(800) 727-5257.

Medicare Secondary Payer Act: What Attorneys Must Know, 90-minute

webinar presented by Bryan Moseley, with Moseley & Moseley in
Murfreesboro, on Thursday, April 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
For more information, visit: http://www.mleesmith.com/medicare-042717
or call us at (800) 727-5257.

2017 Tennessee Child Support Update: New Cases, Rules, and

Definitions of Underemployment, 60-minute webinar presented by Melody
Luhn, with Norton & Luhn, P.C., in Knoxville, on Thursday, May 4, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: http://www.mleesmith.com/child-support-050417
or call us at (800) 727-5257.
 Judgment Enforcement and Contempt Proceedings in Tennessee
Family Law Cases, 60-minute webinar presented by Brent Lankford,
with Stites & Harbison in Nashville, on Thursday, May 4, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/judgment-enforcement-050417
or call us at (800) 727-5257.

On-Site Events

10th annual
Medical Malpractice Conference for Tennessee Attorneys
*(now expanded to 2 Days)*

WHEN: Thursday & Friday, May 4-5

WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Tom Brothers, Davidson County Circuit Court; Judge Jeff
Hollingsworth, Hamilton County Circuit Court; Brandon Bass, Law Offices of John Day
PC, Brentwood; William L. Bomar, Glankler Brown, PLLC, Memphis; Charles Higgins,
Burch, Porter & Johnson, PLLC, Memphis; Clint Kelly, The Kelly Firm, Hendersonville
Randy Kinnard, Kinnard Clayton & Beveridge, Nashville; Wendy Longmire, Ortale
Kelley, Nashville; James E. Looper, Jr., Hall Booth Smith, P.C., Nashville; Marty
Phillips, Rainey, Kizer, Reviere & Bell, PLC, Jackson; Chris Tardio, Gideon, Cooper &
Essary PLC, Nashville; and Joshua Walker, Associate General Counsel, University of
Tennessee, Knoxville

HIGHLIGHTS: Pre-suit notice and certificate of good faith requirements; review of

causation issues; medical battery and informed consent; choosing and using expert
witnesses; using medical records when examining witnesses; deposition strategies to help
you win at trial; voir dire and jury selection strategies; using technology in the courtroom;
dos and donts from a trial judge; review of recent healthcare liability appellate court
decisions; panel discussions of hot topics in healthcare liability actions; ethical issues
in dealing with medical records; and ethical issues arising during settlement negotiations.

PRICING: $497 (full program) ($427 for any additional attendees from same firm)
*Take $50 off of full program until March 24 (early bird discount)*
$347 (one day only choose either Thursday or Friday)

*You may choose to attend both days or only one day whatever fits your schedule!
For more information, visit www.mleesmith.com/tn-med-mal-2017 or call (800) 727-5257.
 3rd annual
Tennessee Business Law Conference
WHEN: Friday, May 19
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Alexander J. Davie, Riggs Davie PLC, Nashville; Charles G. (Chuck)

Fisher, VI, Grant, Kovalinka & Harrison, P.C., Chattanooga; Kelly Frey, Frost Brown Todd
LLC, Nashville; Michael Goode, Stites & Harbison, PLLC, Nashville; Justin Joy, Lewis,
Thomason, King, Krieg & Waldrop, P.C., Memphis; Ralph Levy, Jr., Dickinson Wright
PLLC, Nashville; Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business
Court; and Matthew Lyon, Lincoln Memorial University, Duncan School of Law, Knoxville

HIGHLIGHTS: Overview of the Tennessee Business Court Pilot Project; choosing the
right business entity to match your clients needs; mistakes to avoid in drafting LLC
operating agreements; drafting and negotiating business contracts, including
representations, warranties and indemnification; advantages and drawbacks of using a
Series LLC; tax consequences of limited liability company mergers, conversions, and
reorganizations; overview of the cyber threat landscape for businesses; new options for
raising capital for small companies; and corporate compliance and ethics identifying
and managing common business risks.

PRICING: $377 (full program) ($297 for any additional attendees from same firm)
*Take $50 off until April 7 (early bird discount)*

For more information, visit www.mleesmith.com/tblc or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Court of Appeals rules alleged rape of patient at hospital perpetrated

by security guard was not related to provision of, or failure to provide,
healthcare services, and hence, trial court erred in dismissing
complaint for noncompliance with requirements of Health Care
Liability Act;
Court of Appeals reverses award of portion of life insurance proceeds
to decedents son on basis of promissory estoppel when decedent
named her husband and sister as beneficiaries and no legal mandate
required decedent to name someone other than sister as beneficiary;
Court of Appeals says, in termination of parental rights case, that fact
that mother had abused drugs and generally was irresponsible in her
life cannot alone impute willfulness as to her non-support of child;
 Court of Appeals, in case in which husbands expenses exceeded his
net income by almost $500, reverses alimony in futuro award to wife
of $100 per month when trial courts findings did not definitively
conclude that husbands undetermined extra income enabled him to
pay $100 per month in alimony, but noted only that it is anticipated
that Husband will have sufficient funds to pay; and
In DUI case, Court of Criminal Appeals says that although state failed
to satisfy fourth Sensing requirement, i.e., that defendant was
observed for requisite 20 minutes prior to test and that during this
period, he did not have foreign matter in his mouth and did not
consume any alcohol, smoke, or regurgitate, state may still introduce
results of breath test through expert witness.

COURT OF APPEALS

TORTS: When plaintiff alleged that she was raped by security guard at
hospital and filed suit against security guard and hospital for assault and
battery, gross negligence, and infliction of emotional distress, trial court
erred in dismissing complaint for noncompliance with requirements of
Health Care Liability Act; alleged rape perpetrated by security guard is not
related to provision of, or failure to provide, healthcare services; although
security guards duties in watching over plaintiffs hospital room involved
healthcare services as that term is defined by statute, nothing in complaint
alleging that security guards failure to provide proper security or
monitoring resulted in injury to plaintiff. Cordell v. Cleveland Tennessee
Hospital LLC, 2/27/17, Nashville, Goldin, 14 pages.
http://www.tncourts.gov/sites/default/files/cordell.opn_.pdf

INSURANCE: When decedent named her husband and sister as beneficiaries

on life insurance policy and, upon decedents death, husband filed suit to
recover proceeds decedent left to sister and place them in trust for benefit of
decedents son, minor at time, trial court erred in concluding that son was
entitled to proceeds based on theory of promissory estoppel; decedents estate
and husband relied on evidence showing her intent that money be used for sons
benefit, but no amount of evidence regarding decedents intent changes fact that
decedent named sister as co-beneficiary; because insurance policy is contract
between insured and insurance company and because no legal mandate required
decedent to name someone other than sister as beneficiary, sister is entitled to
remaining proceeds of policy; equitable remedies do not come into play because
express terms of insurance policy control outcome. Estate of Lane v.
Courteaux, 2/28/17, Nashville, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/lane.charlesestate.opn_.pdf

EMPLOYMENT: When defendant medical center suspected plaintiff, nurse,

was illegally diverting medications, plaintiffs supervisors confronted her with
evidence of several suspicious transactions recorded by medication monitoring
systems, plaintiff denied wrongdoing but could not explain suspicious
transactions, she was terminated shortly thereafter, and she filed suit under
Tennessee Disabilities Act (TDA) alleging that she was fired solely because
defendant perceived her to have disability of drug addiction, trial court properly
granted defendant summary judgment; if employer perceives, rightly or
wrongly, that employee has current active addiction to controlled substance,
then it is not perceived disability under TDA, and there was no evidence that
defendant considered plaintiff to be former, or presently recovering, drug
addict, and hence plaintiff was not able to establish prima facie case; in
alternative, summary judgment was proper on basis that plaintiff was unable to
show that defendants stated reason for discharge its suspicion that plaintiff
was diverting medications was pretextual. Demastus v. University Health
System Inc., 3/2/17, Knoxville, Susano, 19 pages.
http://www.tncourts.gov/sites/default/files/demastus_v_univ._health_system_opn.pdf

COMMERCIAL LAW: When borrowers approached lender seeking to

refinance existing loan secured by deed of trust on certain commercial
properties, parties entered agreement specifying that lenders security interest
would be first lien deed of trust and requiring borrowers to pay nonrefundable
commitment fees, borrowers executed agreement and paid commitment fee,
but loan did not close due to discovery of prior lien on one of properties, and
borrowers filed suit for damages arising out of lenders refusal to lend or to
refund commitment fee, trial court properly granted lenders motion for
summary judgment; commitment letter clearly required borrowers to provide
lender first lien position on each of subject properties on or before 7/27/13 as
condition to lend, and because borrowers were unable to do so, borrowers could
not satisfy terms of commitment, and lender was not required to perform, and
whether lender knew or did not know about pre-existing lien on property was
immaterial; borrowers were experiencing financial difficulty at time
commitment letter was executed, but, taking allegations as true, lenders
presentation of take it or leave it offer did not amount to wrongful act
sufficient to establish economic duress; trial court did not err in denying
lenders request for attorney fees when language of commitment letter
unambiguously provides for attorney fees incurred in drafting and negotiation
of documents and language did not authorize attorney fees beyond that, and
hence, did not sufficiently put borrowers on notice that they were liable for
lenders attorney fees in defending this matter. SK Food Corp. v. FirstBank,
2/28/17, Nashville, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/sk_food_co.v.firstbank.opn_.pdf

COMMERCIAL LAW: When plaintiff, affiliate real estate broker,

registered his real estate license with Sandifer, principal real estate broker,
and Tennessee Realty Pros, LLC (TRP) (collectively, Brokerage) on 9/6/13,
TRP secured commercial exclusive right to sell listing agreement from seller
on 11/1/13, TRP eventually procured buyer who executed commercial
purchase and sales agreement on 3/23/14, agreement listed plaintiff as
Buyers Designated Agent and selling licensee, agreement listed Sandifer as
Sellers Designated Agent and listing licensee, real estate closing occurred
on 9/30/14, resulting in total brokers commission of $97,400, because only
one brokerage was involved in transaction, entire commission was paid to
TRP, Brokerage refused to disburse any of commission to plaintiff, and
plaintiff filed suit to share in commission, plaintiff is entitled to customary
portion of selling side commission for representing buyer; testimony at trial
indicates that customary commission split at TRP entitles affiliate broker to
70% of commission earned, so plaintiff is entitled to $34,900, i.e., 70% of
$48,700. Dalton v. Sandifer, 2/27/17, Knoxville, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/daltonvsandifercoaopinion.pdf

CONTRACTS: When, according to complaint, Plates semi-trailer

jackknifed and slammed into Voigts vehicle on 3/13/12, causing Voigt to
lose control and slam into the barrier wall, Voigt was transported to hospital
by his wife, J.B. Hunt, Plates employer, hired investigator who contacted
Voigt on 3/13/12 and discussed settlement, according to proposed settlement,
Voigt would be allowed to retain salvage value of his vehicle, investigator
rounded settlement amounts to $10,000 to settle property damage portion of
claim, investigator testified that he allocated $215 as payment for personal
injury without discussing it with Voigt, Voigt and his wife signed RELEASE
OF ALL CLAIMS on 3/15/12, during conversation with insurance adjuster in
4/12, Voigt was first advised that release jeopardized insurers subrogation
rights, according to Voigt, conference call followed during which investigator
requested medical bills and reassured Voigt and adjuster that J.B. Hunt
remained liable for such expenses, Voigts medical bills were sent to
investigator who forwarded them to J.B. Hunt, J.B. Hunts representative told
Voigt it was very unusual for somebody to send [them] medical bills after a
settlement is signed, Voigt sought legal representation in 5/12, suit was filed
on 3/7/13 seeking damages for personal injuries, J.B. Hunt filed motion to
dismiss relying on signed release, and Voigt responded by alleging that he was
fraudulently induced into signing release and requesting reformation of release
document, trial court erred in granting in J.B. Hunt summary judgment on
basis that plaintiffs action was not prompt after discovery of alleged fraud;
plaintiff presented evidence sufficient to create genuine issue of material fact
as to whether he acted promptly in seeking reformation of release. Voigt v.
Plate, 2/28/17, Knoxville, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/voightopinion.pdf

PROPERTY: In case in which plaintiff alleged that defendant was

trespassing on her land via placement of dock over lakefront real property
that is beneath lakes fluctuating water line several months of year, trial
court erred in concluding that defendant had established adverse possession
for 20-year period required by common law, but error was harmless because
defendant successfully established seven-year period required for affirmative
defense of adverse possession provided for by TCA 28-2-103. Frinks v.
Horvath, 2/28/17, Knoxville, Frierson, 24 pages.
http://www.tncourts.gov/sites/default/files/frinks_opinion.pdf

FAMILY LAW: Evidence preponderated against trial courts termination

of mothers parental rights on ground of abandonment due to willful failure
to visit when mother likely visited children 43 or 44 times during four
months prior to filing of termination petition; evidence preponderated
against trial courts termination of mothers parental rights on ground of
abandonment due to failure to support when evidence was silent as to
mothers means or capability to work during relevant four-month period
preceding filing of termination petition and fact that mother had abused
drugs and generally was irresponsible in her life cannot alone impute
willfulness as to her non-support; although close question, trial court did not
abuse discretion in admitting text messages produced by mothers
acquaintance purportedly showing that mother engaged in illicit drug sales
significance of text messages was that they could be interpreted to show that
mother earned money selling drugs, which, in turn, could support showing
of willfulness in her failure to pay support when trial court considered
acquaintances testimony credible and sufficient to establish that text
messages were what they were claimed to be; because text messages perhaps
better supported conclusion that, if anything, mother was failed drug dealer,
even accepting test messages authenticity and admission, they were not
dispositive to issue of mothers alleged willful non-support; trial courts
grant of grandfathers adoption petition with regard to two children is
reversed. In re Karissa V., 2/27/17, Knoxville, Swiney, 22 pages.
http://www.tncourts.gov/sites/default/files/karissavopinion.pdf

FAMILY LAW: Evidence preponderated against trial courts award to wife

of $100 per month as alimony in futuro when trial courts findings do not
definitively conclude that husbands undetermined extra income
husbands net income is $2,633 per month and his reasonable expenses are
$3,100 enables him to pay $100 per month in alimony, rather, trial court
noted that it is anticipated that Husband will have sufficient funds to pay;
because there is no finding that wifes economic rehabilitation is not feasible
and there is no finding that long-term support is necessary, trial courts
decision is without proper foundation; trial courts alimony award is vacated,
and case is remanded for further consideration. Buntyn v. Buntyn, 2/28/17,
Jackson, Goldin, 6 pages.
http://www.tncourts.gov/sites/default/files/buntynjeanetteopn.pdf

FAMILY LAW: In case in which maternal grandparents were granted

custody of child in 11/06, father filed petition in 2010 to modify custody,
which was denied by juvenile court because father failed to establish
material change in circumstances sufficient to alter primary residential
parent, and in 4/15, father filed new petition for custody, or in alternative,
for entry of parenting plan setting specific parenting time, juvenile court
properly granted grandparents motion to dismiss fathers petition; fathers
claim of superior parental rights is barred by doctrine of res judicata because
issue could have been raised during hearing on fathers 2010 petition;
although father failed to state claim for change of custody, father was
entitled to hearing on his request for visitation rights; case is remanded to
juvenile court for further proceedings. Harper v. Harris, 2/28/17, Nashville,
McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/harper.jonathan.opn_.pdf

FAMILY LAW: Until such time as trial court enters order establishing
father to be childs legal father, there exists no legal parent-child relationship
between father and child; even when mother has listed putative father on
childs birth certificate or informally by other acts, words, or cohabitation,
acknowledged that [a man] was the childs natural father, the putative father
would still not have the legal status of a parent under Tennessee law.
Milton v. Harness, 3/3/17, Knoxville, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/miltonvharnessopinion.pdf
COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of attempted

possession of .5 gram or more of cocaine with intent to sell and intent to
deliver, simple possession of marijuana, possession of drug paraphernalia,
and two counts of violation of criminal gang enhancement statute (Counts 5
and 6) predicated on underlying attempted possession of cocaine offenses in
Counts 1 and 2, and jury found that two attempted cocaine possession
offenses constituted criminal gang offenses, resulting in defendant receiving
enhanced punishment, because criminal gang enhancement statute as
employed by state in guilt phase of trial on Counts 5 and 6 violates Due
Process Clause and is facially unconstitutional, plain error requires that
defendants two attempted cocaine possession offenses be reversed, with
case remanded for modification to reflect convictions for Class C felonies
and to remove reference to gang enhancement statute; criminal gang
enhancements in Counts 5 and 6 are vacated, and those judgments are
reversed and dismissed, and enhanced sentences in Counts 1 and 2 are
vacated, with case remanded to trial court for resentencing on those counts
and judgment forms reflecting proper merger. State v. Byars, 2/27/17,
Jackson, Thomas, 27 pages.
http://www.tncourts.gov/sites/default/files/byarsgeraldlamontopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge erred in suppressing

results of defendants blood alcohol test based upon violation of Sensing
when state attempted to properly admit test results through expert testimony
in accordance with TRE 702 and 703; although state failed to satisfy fourth
Sensing requirement, i.e., that defendant was observed for requisite 20
minutes prior to test and that during this period, he did not have foreign
matter in his mouth and did not consume any alcohol, smoke, or regurgitate,
state may still introduce results of breath test through expert witness. State v.
Henderson, 3/3/17, Nashville, Thomas, 8 pages.
http://www.tncourts.gov/sites/default/files/kelly_henderson.pdf

CRIMINAL PROCEDURE: Post-conviction court erred in granting

petitioner relief based on ineffective assistance of counsel when evidence
did not support finding that counsel was aware that Thomas wanted to testify
for petitioner; while Thomas testified at post-conviction hearing that he told
petitioner that he wanted to testify, petitioner never testified that he received
this information or conveyed it to counsel, and counsel testified that he
would have been shocked if Thomas attorney told him that Thomas
would testify and admit to murder; absent showing that counsel knew that
Thomas was willing to testify for petitioner, it was reasonable for counsel to
believe that Thomas, co-defendant charged with first degree murder, would
not incriminate himself if called to testify; it was not unreasonable for trial
counsel not to interview Thomas prior to trial because counsel spoke to
Thomas attorney and attorney never mentioned that Thomas was willing to
testify for petitioner, and no evidence suggests that Thomas attorney would
have allowed Thomas to speak to counsel and implicate himself in murder.
Moody v. State, 3/2/17, Nashville, Glenn, 17 pages.
http://www.tncourts.gov/sites/default/files/deangelo_moody.pdf

SIXTH CIRCUIT COURT OF APPEALS

CIVIL PROCEDURE: When plaintiff was injured in underground accident

in 12/07 while working in zinc mine in eastern Tennessee, truck plaintiff
drove was manufactured by Sandvik OY, distributed in United States by
Sandvik USA, and contained engine made by Detroit Diesel, plaintiff filed
suit in federal court against several other defendants not including Detroit
Diesel, Sandvik USA, or Sandvik OY on 9/29/08, he filed suit in state
court against Detroit Diesel and Sandvik USA, as well as many of original
defendants, on 12/4/08, plaintiff voluntarily dismissed first suit on 10/09, he
filed notice of dismissal in second suit, along with proposed order stating
that [s]uch order relates back to the filing of such notice, nunc pro tunc,
October 25, 2010, state court entered order on 11/8/10 dismissing second
suit without prejudice, plaintiff filed suit in federal court against several
defendants, including Detroit Diesel, Sandvik USA, and Sandvik OY, suit
was dismissed for failure to establish complete diversity, plaintiff filed suit
in state court on 9/3/15, and Detroit Diesel removed case to federal court,
district court properly granted defendants motion to dismiss; TRCP 41.01s
requirements were not satisfied at time third suit was filed when second suit
was filed in state court on 12/4/08, within original statute of limitation,
plaintiff filed notice of voluntary dismissal on 10/25/10, which clerk entered
on 11/8/10, but third suit was filed in federal court on 10/25/10, before
dismissal order was both signed by court and entered by clerk; savings
period does not begin until requirements of FRCP 41.01(1) order is both
signed by court and entered by clerk are satisfied, and hence, plaintiff
could not make use of savings statute in TCA 28-1-105(a) until 11/8/10;
nunc pro tunc provision in state courts order does not alter this outcome as
nunc pro tunc order can only be made when thing ordered has been
previously allowed, but by inadvertence has not been entered, and it applies
only to orders of court, not to actions of counsel. Hunley v. Detroit Diesel
Corp., 3/1/17, Stranch, 7 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0134n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Worker, who was injured while

installing hardwood flooring, was employee, rather than subcontractor or
independent contractor, when company, through its owner, hired worker
after he completed written application, worker performed work at hourly
wage, for 40-hour work week, which precluded other employment, company
provided tools, set work hours, and did all hiring and firing, and company
and its owner apparently controlled all aspects of worksite; although
company must provide worker with past and ongoing medical benefits as
well as past temporary total disability benefits, it is unclear whether payment
will be forthcoming, as company did not have workers comp insurance at
time of accident, nor has owner made any effort to participate in case, and
employee is eligible to receive medical and past temporary total disability
benefits from Uninsured Employers Fund. Davenport v. Advanced
Remodeling & Floor Covering LLC, 12/5/16, Nashville, Switzer, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1652&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