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TAM-BYTES October 5, 2015 Vol. 18, No. 40

TAM Webinars

10 Rules to Use in Tennessee Civil Lawsuits,60-minute webinar presented by Brandon Bass, with The Law Offices of John Day in Brentwood, on Wednesday, October 28, at 2 p.m. (Central), 3 p.m. (Eastern).

*Earn 1 hour of GENERAL credit

Estate Administration in Tennessee: Identifying Assets and Satisfying Creditor Claims,60-minute webinar presented by Grayson Smith Cannon, with Phillips & Ingrum in Gallatin, on Wednesday, November 18, at 2 p.m. (Central), 3 p.m. (Eastern).

*Earn 1 hour of GENERAL credit

“Amendments to Federal E-Discovery Rules Take Effect December 1:

Are You Ready?,60-minute webinar presented by Tom Shaw, Assistant General Counsel with CCA Legal Department in Nashville and Russell Taber, with Riley Warnock & Jacobson in Nashville, on Tuesday, December 1, at 2 p.m. (Central), 3 p.m. (Eastern).

*Earn 1 hour of GENERAL credit

“Engaging Clients Online: Attorney Guidelines for Websites, Blogging, and Social Media,60-minute webinar presented by Vincent J. “V.J.” Graffeo, Birmingham attorneys, on Thursday, December 3, at 2 p.m. (Central), 3 p.m. (Eastern).

*Earn 1 hour of GENERAL credit

“Procedural Rules in Tennessee – Using Motions to Enhance Your Practice,60-minute webinar presented by John Elder, with Paine Bickers in Knoxville, on Tuesday, December 8, at 10 a.m. (Central), 11 a.m. (Eastern).

*Earn 1 hour of GENERAL credit

“Judgment Collection in Tennessee: Steps to Take When the Judgment Debtor Files Bankruptcy,60-minute webinar presented by Griffin Dunham, with Emerge Law in Nashville, on Wednesday, December 9, at 2 p.m. (Central), 3 p.m. (Eastern).

*Earn 1 hour of GENERAL credit

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

TAM On-Site Events

Tennessee Real Estate Law Conference

WHEN:

WHERE: Nashville Nashville School of Law CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1 hour of DUAL credit

Friday, October 30

FACULTY: Kim Brown, Sherrard & Roe; Christopher S. Dunn, Waller, Lansden, Dortch & Davis; Robert C. Goodrich Jr., Burr & Forman; Lisa Helton, Sherrard & Roe; Zachary Miller, Burr & Forman; C. Palmer Pillans, Butler Snow; Marcy Shelton, Gullett Sanford Robinson & Martin; Wes Turner, Gullett Sanford Robinson & Martin; and Dudley M. West, White & Reasor, PLC.

HIGHLIGHTS: Drafting commercial leases; commercial development and financing; mechanicsand materialmens liens; commercial foreclosure issues; hottopics in title insurance; consumer mortgages and the impact of the new CFPB rules; ethical considerations in real estate law; and real estate case law/legislative update

To learn more or to register, visit: www.mleesmith.com/tn-real-estate-2015

Law Conference for Tennessee Practitioners

WHEN:

WHERE: Nashville -- Marriott Franklin/Cool Springs

CLE:

3 hours of DUAL credit!!

Thursday & Friday, November 12 & 13

Earn all your CLE for 2015

up to 15 hours of GENERAL credit and

FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge Joseph P. Binkley, Circuit Court, Davidson County; Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County; Chancellor Russell T. Perkins, Chancery Court, Davidson County; David Anthony, Bone McAllester & Norton PLLC; Laura Baker, Law Offices of John Day P.C.; Dale Conder, Rainey Kizer Reviere & Bell PLC; Dan Coughlin, Massengill, Caldwell & Coughlin PC; Griffin Dunham, Emerge Law PLC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional Responsibility; Candi Henry, Dodson Parker Behm & Capparella PC; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Brenton H. Lankford, Stites & Harbison PLLC; Matt Potempa, Martin Heller Potempa & Sheppard; and Richard Spore, Bass, Berry & Sims PLC

HIGHLIGHTS: Overview of Tennessees new business court; recent developments in healthcare liability; use of judgment liens on real and personal property; family law highlights; tips on handling uninsured/underinsured motorist claims; sophisticated deposition strategies; rules that practitioners seldom encounter; representing a client in a business divorce; using websites and social media to promote your law practice; probating wills and administering estates; pretrial motion practice; the deferential abuse of discretion standard of review; update from the Board of Professional Responsibility; ethics and evidence; and professionalism in the practice of law.

To learn more or to register, visit: http://www.mleesmith.com/law-conference-2015

Tennessee WorkersComp Conference

WHEN:

WHERE: Nashville Embassy Suites Franklin/Cool Springs

CLE:

Thursday & Friday, November 19 & 20

Earn up to 14 hours of GENERAL credit and 1 hour of DUAL credit!!

FACULTY: WORKERSCOMP JUDGES: Judge Tim Conner; Judge Marshall Davidson; Judge Pam Johnson; and Chief Judge Ken Switzer. DEPARTMENT OF LABOR & WORKFORCE DEVELOPMENT: Troy Haley; Dr. Robert B. Snyder; April Verdoni; and Lance Wheaton. WORKERSCOMP ATTORNEYS: Mary Dee Allen; Fred Baker; Leslie Bishop; Kitty Boyte; Greg Grisham; Sean Antone Hunt; Steve Libby; Mary Beth Maddox; Marshall McClarnon; Kenneth D. Veit; and Elaine M. Youngblood. OTHERS: Wendy Fisher; Dr. Jeffrey Hazlewood; and Christine ChrisMcEvoy.

HIGHLIGHTS: Insight from judges on the Court of WorkersCompensation Claims and the WorkersCompensation Appeals Board; comparison of cases and factual scenarios under the old and new law; review of medical panels under the new law, hot topics in workerscomp today, and the interplay between workerscomp, the ADA, and the FMLA; insight from Department of Labor and Workforce Development representatives on the drug-free workplace program, the new pain management rules, penalty- worthy offenses, and the ombudsman program; and a doctors perspective on deterring abuse of pain medication in workerscomp claims. Attorney track also features a session on dos and dontswhen trying a case in the Court of WorkersCompensation Claims, how the new rules really work in practice, settlement options including MSAs, hot topicsin workerscomp from both the plaintiffs and defense perspectives, ethical issues arising under the new law, and a panel discussion each day featuring defense and plaintiffs attorneys, as well as a review of the latest cases from the Tennessee Supreme Court, WorkersCompensation Appeals Panels, WorkersCompensation Appeals Board, and Court of WorkersCompensation Claims.

To learn more or to register, visit: http://www.mleesmith.com/workers-comp-2015

Family Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, December 3 & 4 WHERE: Nashville Nashville School of Law

CLE:

3 hours of DUAL credit!!

Earn all your CLE for 2015

up to 15 hours of GENERAL credit and

FACULTY: Judge Robert L. Childers, circuit court, Shelby County; Judge Phillip Robinson, circuit court, Davidson County; Judge Joseph Woodruff, circuit court, 21 st Judicial District (Hickman, Lewis, Perry, and Williamson counties); and Judge Thomas Wright, circuit court, 3 rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins counties); along with attorneys Amy J. Amundsen, Rice, Amundsen & Caperton PLLC, Memphis; John J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville; Cathy Speers Johnson, Thompson Burton PLLC, Nashville; Stanley A. Kweller, Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Marlene Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr., Richter & Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney; Greg Smith, Stites & Harbison PLLC, Nashville; Jason Talley, Cheatham, Palermo & Garrett Law; and Jacob Thorington, Cheatham, Palermo & Garrett Law, Nashville

HIGHLIGHTS: Protecting a clients separate assets; valuing and dividing marital property; access to mental health records in a custody case; special issues in military divorce; practical tips from judges on issues such as attorney fees, contempt, and child custody modification; marketing yourself and your law firm; social media tips and tricks; domestic violence cases and mediation; cohabiting couples and same-sex marriages; attorney fees in family matters and contempt; case law/legislative update; and ethical considerations in family law.

To learn more or to register, visit: http://www.mleesmith.com/family-law-15

Attorney Technology Conference

WHEN:

WHERE: Nashville Nashville School of Law CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1 hour of DUAL credit

Friday, December 11

FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; David Anthony, Bone McAllester Norton PLLC, Nashville; André J. Bahou, Bahou Law PLC, Brentwood; Ian Bourgoine, Belmont University College of Law, Nashville; Nancy Eady, Morris, Haynes, Wheeles, Knowles, & Nelson, Alexander City, AL; William M. Jeter, Heaton and Moore PC, Memphis; Tom Shaw, Assistant General Counsel, CCA Legal Department; and Russell Taber, Riley Warnock & Jacobson PLC, Nashville

HIGHLIGHTS: Practical tech tips: Recovering data, archiving and preserving data, and sharing and retrieving data; time-saving tools that every attorney should have in his or her technology toolkit; how to make your social media evidence usable at trial; a judges perspective on technology in the courtroom and e-discovery; how to find free legal research sites and free case law; tips and strategies for collecting social media evidence to use at trial; how to find practice tools,such as sample forms, contracts, briefs, and settlements; update on new federal e-discovery rules; how to use blogs and social media to grow your practice; and ethical issues inherent in cloud computing

To learn more or to register, visit: www.mleesmith.com/tech-2015

IN THIS WEEKS TAM-Bytes

Supreme Court rules that state must refund over $16 million in taxes paid by claimants, five groups of Pennsylvania-domiciled insurance companies that filed complaints seeking refund of retaliatory taxes paid in Tennessee, when claimants were not required to calculate Pennsylvania workers’ comp assessments as part of their retaliatory tax in Tennessee because assessments were paid by policyholders, not insurance companies;

Court of Appeals rules that when plaintiffs substantially complied with TCA 29-26-121 and plaintiffs’ errors in failing to strictly comply did not result in prejudice to defendants, their healthcare liability action should not be dismissed due to plaintiffs’ failure to attach medical authorization and pre-suit notice letters with their complaint;

Court of Appeals says because terminated police officer had previously obtained judgment for front pay upon his election of such remedy in federal case arising from same circumstances, officer is precluded from seeking remedy of reinstatement;

Court of Appeals finds exception to claim of adverse possession enunciated in Cumulus Broadcasting Inc. v. Shim was applicable when disputed property was contiguous to plaintiffs’ and defendants’ land, relatively small area of land was at issue, and adjacent property owners making claims of ownership had paid their respective real estate taxes;

Court of Appeals says that when amended complaint supersedes and destroys original complaint, trial court is required to revisit question of venue in light of parties and causes of action included in amended complaint;

Court of Criminal Appeals says trial courts, particularly those conducting trials involving sequestered juries, should consider limiting jurors’ access to personal electronic devices and utilizing pattern jury instruction regarding electronic communication; and

Court of Criminal Appeals, in reversing defendant’s vehicular homicide conviction, rules trial court erred in denying defendant’s motion to suppress evidence obtained from warrantless blood draw when no exigent circumstances justified warrantless search.

SUPREME COURT

INSURANCE: In case in which five groups of Pennsylvania-domiciled insurance companies filed complaints in Tennessee Claims Commission

seeking refund of retaliatory taxes in Tennessee, claims commissioner had no authority to impose retaliatory tax upon claimants when workers' compensation assessments at issue must be paid by employer-policyholders in conjunction with their premium payments, and hence, administrative task of collecting and remitting those payments does not qualify as burden on insurance companies for purposes of retaliatory tax. Chartis Casualty Co. v. State, 10/2/15, Nashville, Wade, unanimous, 18 pages.

COURT OF APPEALS

TORTS: In case alleging negligence in two surgeries in which defendants assert plaintiffs’ pre-suit notice failed to comply with requirements of TCA 29-26-121, plaintiffs’ medical authorization substantially complied with HIPAA; because plaintiffs substantially complied with TCA 29-26-121 and plaintiffs’ errors in failing to strictly comply did not result in prejudice to defendants, their action should not be dismissed due to plaintiffs’ failure to attach medical authorization and pre-suit notice letters with their complaint. Hunt v. Nair, 9/25/15, ES, Susano, 18 pages.

TORTS: When home was completely destroyed by fire during construction, plaintiff homeowners sued project’s general contractor and various subcontractors employed by general contractor, trial court properly granted general contractor summary judgment regarding its own negligence and res ipsa loquitor; contractual provision does not establish general contractor’s exclusive control as element of doctrine of res ispa loquitor when plaintiffs enjoyed unhindered access to home’s interior, as did numerous workers and subcontractors; trial court erred in granting summary judgment in favor of flooring subcontractors on issue of negligence when plaintiffs demonstrated that flooring subcontractors owed duty to exercise reasonable care when working on property and that this duty had allegedly been breached when flooring subcontractors improperly disposed of flammable rags and cigarette butts; evidence created genuine issue of material fact with regard to whether plaintiffs first materially breached contract. Jenkins v. Big City Remodeling, 9/29/15, ES, Frierson, partial dissent by Susano, 18 pages.

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EMPLOYMENT: In case in which plaintiff’s (police officer’s) employment was terminated on grounds of unfitness for duty due to post-traumatic stress disorder suffered as result of officer’s active military service while on leave

from his employment, because plaintiff previously obtained judgment for front pay upon his election of such remedy in federal case arising from same circumstances, plaintiff is precluded from seeking remedy of reinstatement; Tennessee courts have recognized that employee who is found to be wrongfully discharged “can be made whole through an award of back pay and either reinstatement or, in certain circumstances, front pay.” Hoback v. City of Chattanooga, 9/28/15, ES, Frierson, 19 pages.

PROPERTY: In case involving dispute over narrow strip of real property adjacent to boundary line of tracts of land owned by plaintiffs and defendants, plaintiffs filed suit seeking ejectment and declaration that they owned disputed property, and defendants claimed that they were entitled to property because of their many years of adverse possession, trial judge properly ruled that defendants established ownership by adverse possession and that exception enunciated in Cumulus Broadcasting Inc. v. Shim, 226 SW3d 366 (Tenn. 2007), was applicable Cumulus stated that TCA 28-2- 110, which bars adverse possession claim when plaintiff had not paid property taxes on disputed property for more than 20 years, does not apply when tracts are contiguous, relatively small area is at issue, and adjacent owners making claims of ownership have paid their respective real estate taxes; because tracts are contiguous, relatively small area is at issue, and both defendants and plaintiffs paid property taxes on their respective parcels (and both thought they were paying taxes on disputed strip of property), Cumulus exception has been established; fact that public right-of-way for roadway exists does not render plaintiffs’ and defendants’ tracts non-contiguous. Holtsclaw v. Johnson, 9/28/15, ES, Susano, 14 pages.

ESTATES & TRUSTS: When five of decedents’ grandchildren filed action to contest validity of decedent’s will, following mediation, grandchildren and decedent’s three living children entered into settlement agreement, which trial court approved and incorporated into agreed order distributing assets of estate, appellant, daughter of decedent’s deceased son, filed action alleging that she was entitled to share of estate under terms of agreed order, and appellant, who was not party to settlement agreement, also alleged that her siblings perpetrated fraud by representing to court that deceased son had only three children and heirs at law when he actually had four, including appellant, trial court erred in granting appellees’ TRCP 12.02(6) motion to dismiss for failure to state claim upon which relief could be granted; complaint stated viable claim for fraud when, construing complaint liberally, presuming all of appellant’s factual allegations to be true and giving her benefit of all reasonable inferences, her complaint

alleges, in effect, that settling heirs deliberately concealed appellant’s existence and status as deceased son’s heir, in order to purposely cut her out of settlement agreement, despite being fully aware that she was son’s daughter and heir as established by prior court order. In re Estate of McCartt, 9/25/15, ES, Susano, 14 pages.

FAMILY LAW: Trial court did not abuse discretion by designating father as child’s primary residential parent when father was more stable financially than mother at time of trial, mother has moved at least twice since she moved out of family house in 2011, whereas father has continued to remain in same house, although father has suffered from “fits of temper,” he has participated in anger management classes as well as parenting classes, and evidence was introduced that child did not always get his homework done while he was with mother and that father has had to help child catch up on his missed homework when child has gone to his house after being with mother. Roland v. Roland, 9/29/15, MS, Bennett, 20 pages.

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FAMILY LAW: Evidence did not preponderate against trial court’s award to wife of alimony in futuro of $3,500 per month until husband’s child support obligation terminated and $4,500 per month thereafter when husband’s earning capacity from his employment was significantly greater than wife’s earning capacity from her handyman business (husband was earning $12,000 per month versus $1,000 per month for wife), and even with additional education or training, husband presented no evidence that wife’s income level could ever be comparable to his trial court found that husband would enjoy large monthly surplus in his income and that wife’s reasonable expenses exceeded her income. Jenkins v. Jenkins, 9/25/15, ES, Frierson, 12 pages.

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CIVIL PROCEDURE: When plaintiff filed medical malpractice action on 9/8/11 against Cookeville Regional Medical Center, governmental entity subject to Governmental Tort Liability Act (GTLA), Medical Center filed motion to dismiss for failure to state claim, relying on Cunningham v. Williamson County Hospital District, 405 SW3d 41 (Tenn. 2013), to support its assertion that plaintiffs’ suit was untimely filed because it was not filed within one-year statute of limitation set forth in GTLA, and plaintiff contended that Cunningham should be applied prospectively so as to preserve plaintiff’s claim as timely, trial court properly ruled that Cunningham was controlling; plaintiff’s cause of action accrued on 5/18/10, after giving pre-suit notice on 5/11/11 and relying upon tolling provision in TCA 29-26-121(c), plaintiff filed her complaint against governmental entity on 9/8/11, which was one year and 133 days after cause of action accrued,

because cause of action accrued prior to 10/1/11, Health Care Liability Act does not apply, and thus, statute of limitation was not extended by giving pre-suit notice of intent to file claim. Miller ex rel. Miller v. Cookeville Regional Medical Center, 9/29/15, MS, Clement, 7 pages.

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CIVIL PROCEDURE: When plaintiff filed original suit in Shelby County against appellants, pathology group located in Shelby County, appellants raised as affirmative defense comparative negligence of appellees, plaintiff’s primary care physician and his employer, who are residents of Sumner County, plaintiff moved under TCA 20-1-119 for leave to amend complaint to add Sumner County residents to suit, leave was granted, plaintiff filed amended complaint under TRCP 15.01, and appellees averred that venue was improper in Shelby County under TCA 20-4-101(b), trial court did not err in transferring case to Sumner County; when amended complaint superseded and destroyed original complaint, trial court was required to revisit question of venue in light of parties and causes of action included in amended compliant; because cause of action arose in Sumner County and because both plaintiff and appellees reside in Sumner County, venue is proper in Sumner County under TCA 20-4-101(b), and hence, Shelby County trial court did not err in transferring case to Sumner County. Barrett v. Chesney, 9/28/15, WS, Armstrong, 14 pages.

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: Trial judge, in murder trial, did not err in allowing sequestered jurors to have their cell phones in their possession during trial when defendant did not allege or offer any proof that they actually used their phones to communicate with persons outside jury or to engage in prohibited internet research about case although defendant has shown possibility of “a prohibited separation of the jury” via contact with third parties, he has not shown that actual separation occurred; neither Tennessee Code nor Tennessee appellate courts have directly addressed what, if any, electronic devices jury members are allowed to retain during sequestered trials, and while TPI Crim. 1.09 admonishes jurors not to use electronic devices or social media to communicate “about the case,” it stops short of prohibiting all usage, and it is not specific to trials in which jury is sequestered; in absence of any specific directives from Tennessee Supreme Court, trial courts, particularly those conducting trials involving sequestered juries, should consider limiting jurors’ access to personal electronic devices

and utilizing pattern jury instruction regarding electronic communication. State v. Rayfield, 9/28/15, Nashville, Montgomery, 29 pages.

CRIMINAL PROCEDURE: In case in which defendant was convicted of vehicular homicide by intoxication, trial judge erred in denying defendant’s motion to suppress evidence obtained from warrantless blood draw when no exigent circumstances justified warrantless search there was no evidence in record about length of time it actually would have taken to obtain warrant, and there was nothing to suggest that obtaining warrant on this particular night would have taken longer than in other cases, and while captain testified that it was necessary for all of responding officers to remain on scene to investigate and clear it before morning commute, at least two officers were directed to leave scene to obtain blood samples from defendant and victim, and state failed to explain why one of these officers could not have returned to police department to start warrant process while defendant was being transported to hospital; defendant’s conviction is vacated, and case is remanded for new trial. State v. Cates, 9/28/15, Knoxville, McMullen, 19 pages.

CRIMINAL SENTENCING: In case in which defendant pled guilty to four counts of aggravated robbery, two counts of theft by shoplifting, and one count of attempted aggravated robbery, trial court abused discretion by imposing partial consecutive sentencing that resulted in effective sentence of 44 years when, considering circumstances of offenses, i.e., that robberies were committed with toy gun, no one was injured, and two of victims knew that gun was plastic, fact that defendant was 49 years old, fact that defendant had complete lack of previous violent offenses, and fact that defendant was already serving 12-year sentence at time of sentencing for these convictions, imposition of concurrent sentences that will confine defendant until age 70 will certainly protect public from defendant and serve to appropriately punish him for his crimes. State v. Biggs, 9/30/15, Knoxville, Thomas, dissent by Woodall, 10 pages.

COURT OF WORKERS’ COMP CLAIMS

WORKERS’ COMPENSATION: In case in which employee fell from ladder while preparing wall to paint and principal contractor presented letter allegedly written by employee it claims serves as liability waiver and prevents employee from holding it liable for accident, but letter does not mention principal contractor, is not dated, and had not been properly

authenticated; even if letter were dated and authenticated, it does not bar employee from recovering benefits from principal contractor because TCA 50-6-114(a) expressly prohibits relieving employer from its obligation under Workers’ Compensation Law through contract or agreement. Sanabria v. Zelaya, 6/18/15, Baker, 10 pages.

WORKERS’ COMPENSATION: When employee reported injury to her low back on 7/11/14, which she alleged occurred when she lifted and stacked totes and bins at employer, employee’s claim requesting temporary disability and medical benefits is denied when authorized treating physician selected from panel of physicians indicated “[t]his is not a situation where [employee] suffered any harmful event to her body as ‘related to work,’” and employee failed to offer contrary opinion to rebut physician’s opinion. Velsor v. Amazon.com Inc., 6/16/15, Johnson, 8 pages.

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