TAM-BYTES December 30, 2013 Vol. 16, No.

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IN THIS WEEKS TAM-Bytes Supreme Court holds, in issue of first impression, that cabinet-level state executive officials are absolutely immune from defamation claims arising out of statements made while performing their official duties; Supreme Court says time-share salesperson is licensed real estate agent under Tennessee Employment Security Laws qualified real estate agent exclusion; Supreme Court holds trial courts failure to comply with TRCrP 11(b)(1)(J) was harmless when petitioner was aware his guilty plea would result in his deportation and could adversely affect his ability to return legally to United States; Court of Appeals, in reversing grant of summary judgment to managing broker in connection with real estate sales contract for real property containing both house and business, holds that TCA 62-13-101 et seq. creates duty on part of managing broker; Court of Appeals affirms trial courts increase in husbands spousal support obligation when trial court found that husbands unreasonable decision not to work at all constituted changed circumstance that justified upward modification of alimony award based on husbands demonstrated work history and earning capacity in previous high-income-earning occupation; Court of Appeals says Individuals with Disabilities Education Act (IDEA) does not eliminate schools ability to discipline disabled students for their misbehavior; Court of Criminal Appeals rules trial courts deviation from mandatory jury selection procedures in TRCrP 24 by not seating replacement jurors in order of their selection and by preventing parties from knowing which of remaining 23 jurors would be selected to serve was harmless error; and Court of Criminal Appeals grants post-conviction relief based on trial counsels failure to ensure defendants presence during jury selection. SUPREME COURT TORTS: State is absolutely immune from employees defamation claims that relate to statements made by Tennessee Department of Correction commissioner in response to media inquiries about employees demotion; cabinet-level executive officials have an absolute privilege to publish defamatory matter concerning

another in communications made in the performance of [their] official duties. Jones v. State, 12/23/13, Nashville, Lee, unanimous, 10 pages.
http://www.tncourts.gov/sites/default/files/joneszoyleopn.pdf

EMPLOYMENT: Time-share salesperson is licensed real estate agent within Tennessee Employment Security Laws qualified real estate agent exclusion; because claimant, licensed time-share salesperson, is qualified real estate agent, her services do not meet Tennessee Employment Security Laws definition of employment, and claimant is ineligible to receive unemployment compensation benefits. Westgate Smoky Mountains at Gatlinburg v. Phillips, 12/23/13, Knoxville, Holder, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/westgateopn_0.pdf

CRIMINAL PROCEDURE: In post-conviction proceeding in which petitioner alleged ineffective counsel based upon trial counsels failure to advise him of immigration consequences of his plea as required by Padilla v. Kentucky, 559 US 356 (2010), record supported post-conviction courts finding that trial counsel advised petitioner he would be deported upon pleading guilty and that his guilty pleas could have adverse effect upon his ability to return legally to United States; Padilla does not mandate that defense counsel in state criminal trial be able to advise client of effect guilty plea is likely to have upon clients future eligibility to immigrate legally to United States; even assuming that Padilla requires defense counsel to give advice on this subject, most that Padilla can fairly be interpreted as requiring in situation such as this, when law is not succinct and straightforward, is general warning that plea may have adverse future immigration consequences; trial courts failure to comply with TRCrP 11(b)(1)(J) was harmless beyond reasonable doubt when petitioner was aware his guilty plea would result in his deportation and could adversely affect his ability to return legally to United States. Garcia v. State, 12/23/13, Nashville, Clark, unanimous, 19 pages.
http://www.tncourts.gov/sites/default/files/blancogarciaja_opn.pdf

COURT OF APPEALS TORTS: Trial court properly dismissed claim by plaintiff, musicologist and journalist, who alleged companies that host media events (defendants) interfered with her business relationships by refusing to issue her press credentials to events defendants host when plaintiff acknowledged that defendants were not obligated to extend press credentials to her and that she had no entitlement to such credentials; trial court properly dismissed plaintiffs claim for false light invasion of privacy when plaintiff alleged that when she raised her hand to ask question following presentation by Mary Kay representative and Coyne PR representative said, Im sorry, but were only taking questions from invited journalists; statement is not

highly offensive to reasonable person, and plaintiff did not allege that defendant gave publicity to public at large of statement at issue. Harris v. Gaylord Entertainment Co., 12/19/13, MS, Cottrell, 11 pages.
http://www.tncourts.gov/sites/default/files/harrissopn_0.pdf

WORKERS COMPENSATION: In FELA case in which jury returned verdict finding railroad negligently caused plaintiffs injuries, that railroad violated Locomotive Inspection Act or safety regulations regarding exposure to asbestos, diesel fumes, and radioactive materials, and that contributory negligence caused 62% of harm plaintiff suffered, jury found that adequate compensation for plaintiffs injuries was $8.6 million, after jury returned verdict, trial court, sua sponte, instructed jury, for first time, that, under FELA, its finding that railroad violated statute or regulation enacted for safety of its employees meant that plaintiff could recover 100% of damages found by jury, trial court sent jury back for further deliberation, jury returned amended verdict of $3.2 million at 100%, six months after trial court entered judgment on $3.2 million verdict, it granted railroads motion for new trial, citing instructional and evidentiary errors, case was assigned to another trial judge who thereafter granted railroads motion for summary judgment as to entirety of complaint, and second judge ruled that causation testimony of all of plaintiffs expert witnesses was inadmissible, trial court erred in instructing jury, sua sponte, on purely legal issue, i.e., that jurys finding of negligence per se under FELA precluded apportionment of any fault to plaintiff based upon contributory negligence; trial court did not make any prejudicial evidentiary rulings in conducting trial, and its jury instructions, read as whole, were clear, correct, and complete; trial court erred in granting new trial; case is remanded for first trial judge to review evidence as thirteenth juror and determine whether jury verdict of $8.6 million is against clear weight of evidence. Payne v. CSX Transportation Inc., 12/27/13, ES, Susano, 32 pages.
http://www.tncourts.gov/sites/default/files/payneaopn.pdf

COMMERCIAL LAW: In suit against affiliate broker and managing broker in connection with real estate sales contract for real property containing both house and business, trial court erred in granting summary judgment to managing broker, who asserted, in part, that she was not personally involved in plaintiffs purchase of real property at issue and had no knowledge of details of transaction; managing brokers liability, if any, does not arise solely from affiliate brokers action but instead arises from breach of her own statutory duty; TCA 62-13-406 provides that managing broker has responsibility to ensure that all licensees affiliated with or employed by the broker conduct business in accordance with appropriate laws, rules and regulations, and other sections of TCA 62-13-101 et seq. further delineate duties owed; although managing broker owed plaintiff duty pursuant to TCA 62-13101 et seq., given record, standard of care required for managing broker to satisfy

her statutory duty cannot be determined. Crumpton v. Grissom, 12/23/13, ES, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/crumptonrropn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts finding that material change of circumstances existed warranting modification of parties parenting plan changing designation of childs primary residential parent to father from mother and that such change was in childs best interest when mother had been married and divorced twice since divorce, she was involved in another romantic relationship at time father filed petition seeking modification of parenting plan, and since divorce, child began school, accumulated number of absences from school, had been inattentive in class, and failed to turn in completed homework, leading to her grades dropping at school. Mezo v. Marker, 12/19/13, MS, Dinkins, 12 pages.
http://www.tncourts.gov/sites/default/files/mezom.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts denial of husbands petition to reduce his alimony obligation to wife when husband, who was unemployed, had made conscious decision not to return to work as independentlycontracted engineering supervisor, and aside from conclusion of Veterans Administration physicians assistant which was based on information husband supplied, husband presented nothing to support his conclusion that he is physically unable to return to his former employment following knee replacement surgery and several months of recovery time; evidence did not preponderate against trial courts decision to grant wifes motion for increased alimony trial court increased husbands spousal support obligation to $2,000 per month from $1,100 per month when trial court found that husbands unreasonable decision not to work at all constituted changed circumstance that justified upward modification of alimony award based on husbands demonstrated work history and earning capacity in previous high-income-earning occupation. Fields v. Fields, 12/27/13, ES, Susano, partial dissent by Swiney, 13 pages.
http://www.tncourts.gov/sites/default/files/fieldsraopn.pdf http://www.tncourts.gov/sites/default/files/fieldsraopndissenting.pdf

CIVIL PROCEDURE: When seller of house and land (plaintiff) filed suit alleging that defendants falsely stated in their Tennessee Residential Property Disclosure that they were unaware of any defects in exterior walls or basement or any flooding or drainage problems, contract for sale of property provided that warranty deed was to be made in name of plaintiff, parties discovered during discovery that deed actually listed plaintiffs three sons as grantees, defendants moved for summary judgment on ground that plaintiff lacked standing because she did not own property, plaintiff moved to amend complaint to include claim for reformation of deed to reflect her intention at time of sale to retain life estate in property with remainder interest in her

sons, and plaintiff filed motion to allow her sons to intervene as plaintiffs, trial court abused discretion in denying plaintiffs motion to amend when plaintiff was not guilty of undue delay as she moved to amend complaint roughly two months after defendants motion for summary judgment and when there was testimony arguably establishing only that plaintiff thought, but was not necessarily sure, that she and her sons were listed on deed; plaintiffs sons, owners of property as listed grantees on deed, claim interest relating to property which is subject to suit and were entitled to intervene as matter of right. Gregory v. Melhorn, 12/27/13, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/gregoryeopn.pdf

GOVERNMENT: Individuals with Disabilities Education Act (IDEA) does not eliminate schools ability to discipline disabled students for their misbehavior; pursuant to IDEA, if child with disability is removed from classroom for longer than 10 consecutive days for disciplinary reason, school must conduct manifestation determination to determine whether behavior requiring discipline resulted from childs disability or whether behavior is direct result of failure to implement child s Individualized Education Program. Link v. Metropolitan Nashville Board of Public Education, 12/19/13, MS, Bennett, 16 pages.
http://www.tncourts.gov/sites/default/files/linkq.opn_.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of attempted first degree murder when defendant threw at least five quarts of boiling oil on victim, his live-in girlfriend, while victim lay, unarmed, in bed, defendant had previously threatened victims life, defendant was jealous and possessive of victim and was angry at being ejected from victims home, defendant left house without rendering aid to victim, and jury rejected defendants claim of ignorance and clearly rejected defendants claim that he knew only that his actions could harm, but not kill, victim. State v. Haase, 12/20/13, Nashville, Bivins, 32 pages.
http://www.tncourts.gov/sites/default/files/haase_ryan_robert_final.pdf

CRIMINAL PROCEDURE: In aggravated sexual battery case, although trial judge erred in deviating from mandatory jury selection procedures in TRCrP 24 by not seating replacement jurors in order of their selection and by preventing parties from knowing which of remaining 23 jurors would be selected to serve, error was harmless when defendant did not show that he was prejudiced by courts deviation from statutory procedure or that deviation was so egregious that prejudice must be presumed. State v. Frausto, 12/23/13, Knoxville, Tipton, 16 pages.
http://www.tncourts.gov/sites/default/files/fraustodominicericopn.pdf

CRIMINAL PROCEDURE: Petitioners right to be present during jury selection compels presumption of prejudice and automatic reversal of conviction when petitioner, who has not provided effective waiver, was absent for almost all of jury selection process; trial counsel was ineffective in failing to request that trial court have petitioner brought into courtroom to advise him of his right to be present during trial, including jury selection, advise him of consequences of refusing to be present, and ask whether he intended to be presented; deficient performance continued after trial because counsel failed to raise issue in motion for new trial and in appeal of petitioners conviction; had counsel preserved issue for appeal in motion for new trial and raised issue in appeal, petitioner would have established reversible error and been entitled to new trial, and, as result, petitioner established prejudice; petitioner is entitled to post-conviction relief on this basis. Taylor v. State, 12/20/13, Knoxville, Tipton, 22 pages.
http://www.tncourts.gov/sites/default/files/taylorrobertcharlesopn.pdf

BOARD OF JUDICIAL CONDUCT PROFESSION OF LAW: Judge Connie Kittrell, Gallatin municipal judge, received public reprimand in connection with dismissal of traffic citation issued to one of Kittrells close relatives in 2011. In re Kittrell, 12/19/13, Craft, 3 pages.
http://www.tncourts.gov/docs/documents/board-judicial-conduct/public-reprimand-judge-connie-kittrell-2013

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