TAM-BYTES

July 17, 2017

Vol. 20, No. 29

TAM Webinars

Parental Relocation in Tennessee: The Impact of the Aragon

Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.

2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.

Trump and Immigration: The Essential Attorney Update, 60-minute

webinar presented by Terry Olsen, with Olsen Law Firm in Chattanooga,
on Wednesday, August 23, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-082317
or call us at (800) 727-5257.

Proving Damages in Tennessee: How to Present Evidence and

Command Jury Attention, 60-minute webinar presented by John
Dunlap, Memphis attorney, on Thursday, August 24, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-082417
or call us at (800) 727-5257.
Divorce in Tennessee: Essential First Steps for Attorneys, 60-
minute webinar presented by Kevin Shepherd, with Shepherd and
Associates PC in Maryville, on Thursday, August 31, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/divorce-083117
or call us at (800) 727-5257.

Helping Clients Market and Collect Via Telephone: TCPA Update

for Attorneys, 60-minute webinar presented by David Esquivel &
Elaina Al-Nimri, with Bass, Berry & Sims in Nashville, on Thursday,
September 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/tcpa-090717
or call us at (800) 727-5257.

On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21-22

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

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties);
Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge
Walter Kurtz, former Davidson County Circuit judge/former Tennessee senior judge;
Laura Baker, Law Offices of John Day, Brentwood; Brandon Bass, Law Offices of
John Day, Brentwood; J. Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett,
Batson Nolan, Clarksville; James Exum, Leitner, Williams, Dooley & Napolitan,
Chattanooga; Steve Gillman, Pryor, Priest, Harber, Floyd & Coffey, Knoxville; Michael
H. Johnson, Howard, Tate, Sowell, Wilson, Leathers, & Johnson, Nashville; Mary
Ellen Morris, Kinnard, Clayton & Beveridge, Nashville; Bryan Moseley, Moseley &
Moseley, Murfreesboro; William J. Rieder, Spears, Moore, Rebman & Williams,
Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile

insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
 practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

12th annual
Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn

Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Eskind Moses, MTR
Family Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville;
Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville
attorney; Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black
Morgan & Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District
(Greeene, Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;

David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear,
Newman & Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County;
Kevin Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel,
Board of Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville
 HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital
property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

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

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Court of Appeals, in dispute between landowners over easement on

plaintiffs property that allows defendants to use easement for ingress
and egress to their homes, affirms judgment in favor of defendants on
their claim for nuisance but reverses judgment in favor of defendants on
their claims for infliction for emotional distress and invasion of privacy;
Court of Appeals examines each element of award of $271,379 in
compensatory damages in auto accident case;
Court of Appeals holds, in issue of first impression, that appellants
failure to sign notice of appeal in termination of parental rights case is
jurisdictional defect mandating dismissal of appeal;
When six landowners filed suit challenging permit issued by
Tennessee Department of Transportation that allowed placement of
water pipelines along two state highways to connect industrial facility
to Nolichucky River, Court of Appeals ruled trial court erred in
holding that none of landowners had standing to maintain action; and
In DUI case, Court of Criminal Appeals rules officers failure to abide
by terms and limitations of search warrant during its execution
rendered blood draw unconstitutional.

COURT OF APPEALS

TORTS: When plaintiffs filed suit alleging that defendants unlawfully

bulldozed easement on plaintiffs property that allows defendants to use
easement for ingress and egress to their home, and defendants filed
counterclaim alleging that plaintiffs were actually ones engaging in
campaign of harassment and that plaintiffs were preventing defendants from
peace and enjoyment of easement, which they used as their driveway,
evidence did not preponderate against trial courts findings that plaintiffs
conduct rose to level of nuisance; judgment in favor of defendants on their
invasion of privacy claim is reversed when, even with respect to incidents
where one plaintiff allegedly screamed and used profanity on plaintiffs and
defendants property, testimony does not indicate that parties had secluded
themselves in private place as contemplated by Restatement; judgment in
favor of defendants on their claim for intentional infliction of emotional
distress is reversed as evidence preponderates against trial courts finding of
serious mental injury; permanent injunction against plaintiffs is reversed to
extent that it prohibits them from lawful access and use of their property.
Stinson v. Mensel, 7/12/17, Nashville, Gibson, 14 pages.
http://www.tncourts.gov/sites/default/files/stinson.charles.opn_.pdf

DAMAGES: In vehicle accident case in which trial court awarded plaintiff

$271,379 in compensatory damages, award for medical expenses is modified
to exclude expenses that were incurred after doctors treatment and were not
proven necessary for treatment of injuries sustained in accident; award of
$169,042 for Lost Future Earnings is vacated and remanded to reconsider
award and make appropriate findings as to extent of plaintiffs future earning
capacity; award of $15,000 for past pain and suffering is affirmed but award
for future pain and suffering is reversed; award of $5,000 for permanent
impairment is affirmed when doctors testimony supported holding that
plaintiff has 5% impairment to her lower back and that impairment would
interfere with her ability to engage in activities; evidence supported awards
of $5,000 for past loss of plaintiffs ability to enjoy life and $15,000 for
future loss of ability to enjoy life. Hyde v. South Central Tennessee
Development District, 7/14/17, Nashville, Dinkins, 14 pages.
http://www.tncourts.gov/sites/default/files/hyde.jonelle.opn_.pdf

PROPERTY: When plaintiffs home was sold at foreclosure and plaintiffs

filed suit to rescind foreclosure sale and asserted claims for breach of
contract, violation of covenant of good faith and fair dealing, violation of
Tennessee Consumer Protection Act, promissory estoppel, and negligent
misrepresentation, trial court properly granted defendants summary
judgment; supposed oral agreement altering payment obligations of note and
deed of trust and postponing foreclosure was subject to statute of frauds and
required to be in writing. Jones v. BAC Home Loans Servicing LP, 7/12/17,
Jackson, Goldin, 18 pages.
http://www.tncourts.gov/sites/default/files/jonesdannyopn.pdf
FAMILY LAW: In case in which child was adopted by guardian in 8/09,
mother contacted father in 12/11 to tell him that she believed child was his
but that she no longer had custody of child, father filed petition in juvenile
court in 3/13 to establish paternity, case was transferred to circuit court, after
filing Motion to Set Aside Final Order of Adoption, father was granted
hearing, and circuit court voided Final Order of Adoption because notice
of appeal had not been signed by guardian, based on language of TCA 36-1-
124(d), which states that any notice of appeal filed in termination of parental
rights action shall be signed by the appellant, absence of guardians
signature on notice of appeal is jurisdictional default, and hence, appeal must
be dismissed; nowhere in Tennessee Code or Tennessee Rules of Appellate
Procedure is there safety valve or means of waiver for requirement of
appellants signature; guardian was provided with enough information, both
within and outside of court, to qualify father as putative father under TCA
36-1-117(c). In re Gabrielle W., 7/11/17, Knoxville, McClarty, 12 pages.
http://www.tncourts.gov/sites/default/files/in_re__gabrielle_w..pdf

FAMILY LAW: In divorce case in which parties, prior to trial, entered into
written agreement providing that they would retain business valuation expert
to analyze two of couples three businesses and that they would accept
experts findings as conclusive evidence of their value at trial, at outset of
trial, wife requested continuance to allow expert more time to complete
valuations, and despite having ordered wife to sign document retaining
expert five days earlier, trial court denied continuance and ordered parties to
proceed with trial, trial court abused discretion in denying wifes request for
continuance when wife had valid reason for requesting continuance, there
was no evidence that experts failure to complete valuations prior to trial
primarily resulted from lack of diligence on wifes part, and denial of wifes
request for continuance was prejudicial to wife; trial courts property
division is vacated, and case is remanded for equitable division of marital
property; on remand, trial court should enforce terms of stipulation
agreement as written and allow expert reasonable time to ascertain values of
two businesses as of date as near as reasonably possible to final divorce
hearing date. Watts v. Watts, 7/11/17, Jackson, Goldin, 17 pages.
http://www.tncourts.gov/sites/default/files/wattsjenniferkateopn_0.pdf

GOVERNMENT: In case in which appellant requested from Town of

Lynnville (Town) number of public records, including minutes from certain
Town board meetings, but Town did not provide appellant with requested
records, Towns denial of records to appellant was willful when records
were available, there was no dispute concerning their ability to be disclosed,
appellant was present to inspect records, and Town was wrong to insist on
payment of upfront fee to gain rights of access to inspect requested public
records; it does not matter that records custodian sought out legal advice if
legal position adopted by records custodian is without any basis in law or
good faith argument for modification of law. Taylor v. Town of Lynnville,
7/13/17, Nashville, Goldin, concurrence by Gibson, 20 pages.
http://www.tncourts.gov/sites/default/files/taylor.rickey.opn_.pdf

GOVERNMENT: In case in which six landowners (plaintiffs) filed suit

challenging permit issued by Tennessee Department of Transportation that
allowed placement of water pipelines along two state highways to connect
industrial facility to Nolichucky River, trial court erred in dismissing
complaint based on its conclusion that none of plaintiffs had standing to
maintain action; two plaintiffs who own large farms along state highway
each had standing to bring suit based on fact that they suffered distinct and
palpable injury based on installation of pipelines in ground alongside
highway adjacent to their property despite fact that no right-of-way exists at
that location; given fact that all six plaintiffs own property along river,
plaintiffs had standing to bring suit asserting injuries to their properties and
rights to use and enjoy river due to location where pipelines withdraw and
discharge water. Calfee v. Tennessee Department of Transportation,
7/11/17, Nashville, Gibson, 18 pages.
http://www.tncourts.gov/sites/default/files/calfee.ann_.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In DUI case, after defendant refused to

consent to blood, search warrant was obtained for blood draw, but officers
failure to abide by terms and limitations of search warrant during its
execution rendered blood draw unconstitutional; under totality of
circumstances, state failed to establish exigent circumstances justifying
blood draw without valid search warrant; neither TCA 40-6-108,
Exclusionary Reform Act, nor good faith exception recognized in State v.
Davidson, 509 SW3d 156 (Tenn. 2016), apply to evidence seized in
violation of either federal or state constitution. State v. Nunnery, 7/13/17,
Nashville, Williams, 16 pages.
http://www.tncourts.gov/sites/default/files/nunnery_arnold_travisopn.pdf
COURT OF WORKERS COMP CLAIMS

CIVIL PROCEDURE: Due to significant deficiencies in employers

summary judgment motion, namely, its flawed factual recitation and its
failure to support motion with documentation in compliance with TRCP 56,
employer is not entitled to summary judgment; employers supporting
documentation was insufficient based on TRCP 56s requirements when
employer submitted doctors opinion in form of letter rather than affidavit
or deposition testimony and when letters reliability was suspect because of
selective information doctor relied upon in his response and fact that
response was unsworn. Riley v. Group Electric, 4/26/17, Nashville,
Switzer, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1790&context=utk_workerscomp

REVENUE RULING

TAXATION: Application of Tennessee franchise and excise taxes to

limited liability company that is disregarded for federal income tax purposes.
Department of Revenue Letter Ruling 17-07, 5/30/17, 4 pages.
http://www.tn.gov/assets/entities/revenue/attachments/17-07r.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