TAM-BYTES

October 2, 2017
Vol. 20, No. 40

TAM Webinars

Deposition Best Practices for Successful Attorneys: How to Prepare,

Take, and Defend, 60-minute webinar presented by Todd Presnell, with
Bradley Arant Boult Cummings in Nashville, on Tuesday, November 7, at
10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/depositions-110717
or call (800) 727-5257

Winning Your Civil Rights Violation Argument: Excessive Force, False

Arrest, & Malicious Prosecution, 90-minute webinar presented by Bryan
Moseley, with Moseley & Moseley in Murfreesboro, on Thursday,
November 9, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/civil-rights-110917

Mastering E-Discovery and Legal Data Management: Tech Tips for

Non-Tech Attorneys, 60-minute webinar presented by Paul Zimmerman,
with Christian & Small in Birmingham, on Tuesday, November 14, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/tech-111417
or call (800) 727-5257

Defending a Suit Under the Governmental Tort Liability Act, 60-

minute webinar presented by Emily Taylor, with Watson, Roach, Batson,
Rowell & Lauderback in Knoxville, on Wednesday, November 15, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/gtla-111517
or call (800) 727-5257
 On-Site Events

Tennessee Workers Comp Conference

WHEN: WEDNESDAY, THURSDAY & FRIDAY, NOVEMBER 8-10
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge

Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
WORKERS COMPENSATION: Troy Haley. WORKERS COMP/EMPLOYMENT
LAW ATTORNEYS: Mary Dee Allen, Wimberly Lawson Wright Daves & Jones PLLC;
Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Leslie Bishop, Lewis,
Thomason, King, Krieg, & Waldrop, P.C.; Kitty Boyte, Constangy, Brooks, Smith &
Prophete, LLP; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims

and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)

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

 Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor

Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

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/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)

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

Family Law Conference for Tennessee Practitioners

WHEN: 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

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

Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court, 21st
 Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District; 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; 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)

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

Probate & Estate Planning Conference for Tennessee Attorneys

WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)

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

IN THIS WEEKS TAM-Bytes

Supreme Court holds that Tennessee courts can and should resolve
genuine church property disputes, so long as courts defer to
religious organizations on disputes about church discipline, faith,
ecclesiastical rule, custom, law, church polity, or internal
governance of religious organization;
Supreme Court clarifies analysis for determining best interests of
child in termination of parental rights case, reiterating that courts
must consider all nine statutory factors, as well as any other
necessary relevant facts, in order to ensure that each case receives
individualized consideration;
Court of Appeals, in case in which nurse brought 86-year-old patient
coffee, nurse left room, and patient spilled coffee on himself, causing
burns, rules claim against hospital was healthcare liability action
subject to requirements of Health Care Liability Act;
Court of Appeals, in split decision, affirms grant of directed
verdict in favor of hospital in healthcare liability case in which
plaintiff alleged vicarious liability on part of hospital in failing to
recognize and investigate signs of infection that plaintiff exhibited
before his discharge;
Court of Appeals examines interplay between statute of limitation,
TRCP 3, and TCA 56-7-1206(d), allowing direct actions against
uninsured motorist insurance carrier;
Court of Appeals says trial court erred in failing to include fathers
musician profit income and his employer-provided cell phone fringe
benefit in his income when calculating fathers child support
obligation;
 Court of Appeals rules husband transmuted property acquired by him
pre-marriage into marital property when husband paid off mortgage
owed on property during marriage and used marital funds that he
earned during course of marriage to do so, at least in part; and
Court of Criminal Appeals rules that search conducted of
defendants cell phone by fellow police dispatcher did not amount to
illegal search given fact that fellow dispatchers intent was to play a
practical joke on defendant, no one instructed him to search
defendants phone, and he never expected to find child pornography
on phone.

SUPREME COURT

PROPERTY: Tennessee courts can and should resolve genuine church

property disputes, so long as courts defer to religious organizations on
disputes about church discipline, faith, ecclesiastical rule, custom, law,
church polity, or internal governance of religious organization; Tennessee
courts should apply hybrid neutral principles of law test when resolving
church property disputes, under which court examines deeds and other legal
documents conveying ownership of church property, as well as governing
documents of hierarchical religious denomination; if governing documents
of hierarchical denomination say that local church property is held in trust
for hierarchical denomination, then Tennessee civil court must enforce this
language and impose trust in favor of hierarchical denomination, even if
deeds and other legal documents do not create trust. Church of God in
Christ Inc. v. L.M. Haley Ministries Inc., 9/21/17, Jackson, Clark,
concurrence by Kirby, 35 pages.
http://www.tncourts.gov/sites/default/files/churchogic_opn.pdf
http://www.tncourts.gov/sites/default/files/cogic.sep_.opn_.pdf

FAMILY LAW: In determining whether termination of parents parental

rights is in childs best interest, courts must consider all nine statutory
factors, as well as any other necessary relevant facts; almost all statutory
factors weigh heavily against finding that terminating mothers parental
rights was in best interest of her three children when children have been
thriving while living with mother for past two years, mother has separated
herself from father, person who was long abusive and toxic influence in her
life, and mother has remained drug-free for years after completing treatment;
intermediate appellate court erroneously placed outcome-determinative
weight on proof regarding mothers severe neglect of children in past and on
mothers history of drug abuse, which exacerbated neglect; while risk
remains that mother may abandon her many positive achievements, return to
father, and resume abusing drugs after Department of Childrens Services is
no longer involved, such risk does not amount to clear and convincing
evidence that termination of mothers parental rights was in best interests of
children. In re Gabriella D., 9/29/17, Knoxville, Clark, unanimous, 28 pages.
http://www.tncourts.gov/sites/default/files/in_re_gabriella_opn.pdf

COURT OF APPEALS

TORTS: When 86-year-old patient was recovering from surgery in

intensive care unit of defendant hospital, nurse brought patient some coffee,
after which she left room, patient spilled coffee on himself, suffering burns
to his body, executor of patients estate brought suit alleging that, given his
condition, he should not have been left alone to manage an extremely hot
beverage, and hospital argued that claim is healthcare liability action
subject to Health Care Liability Act (HCLA) and moved to dismiss based on
plaintiffs failure to provide pre-suit notice and certificate of good faith as
required by HCLA, trial court correctly held claim to be healthcare liability
complaint. Youngblood ex rel. Estate of Vaughn v. River Park Hospital
LLC, 9/28/17, Knoxville, Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/youngblood.nancy_.opn_.pdf

TORTS: In healthcare liability case in which plaintiff alleged that defendant

hospital failed to recognize and investigate signs of infection that plaintiff
exhibited before his discharge, trial court did not err in granting hospital
directed verdict on claims, based solely on vicarious liability, when plaintiff
failed to produce material evidence that specific agent of hospital had
deviated from standard of care and that deviation had caused injury that
would not otherwise have occurred. Miller v. Vanderbilt University,
9/29/17, Nashville, McBrayer, partial dissent by Dinkins, 12 pages.
http://www.tncourts.gov/sites/default/files/miller.patrick.corr_.opn_.pdf
http://www.tncourts.gov/sites/default/files/miller.patrick.diss_.opn_.pdf

INSURANCE: When plaintiffs did not attempt to issue summons to either

defendant driver or plaintiffs uninsured motorist insurance carrier until
after statute of limitation on plaintiffs claim against driver had already
expired, because plaintiffs failed to have process issued to driver within
timeline set out in TRCP 3, filing of their complaint was insufficient to toll
statute of limitation on that claim, and plaintiffs claim against driver is barred
by applicable statute of limitation; because plaintiffs failed to exercise due
diligence to locate and serve driver, they may not rely on direct action
procedure available through TCA 56-7-1205(d); where direct action procedure
is unavailable, lapse of plaintiffs claim against tort-feasor is likewise fatal to
any claim against plaintiffs own uninsured motorist carrier. Davis v. Grange
Mutual Casualty Group, 9/28/17, Nashville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/davis.annie_.opn_.pdf

ESTATES & TRUSTS: When decedents nephews by marriage (appellees)

filed petition seeking to recognize and establish copy of lost will devising
farm to appellees as decedents last will and testament, evidence rebutted
presumption that lost will had been revoked by testator when appellees
prepared decedents meals and stayed every night in her home for eight
years because she did not want to be alone, there was no evidence of any
dispute between decedent and nephews or that their relationship had become
strained causing her to revoke her will, and there was testimony that
decedent wanted to honor her husbands wishes by keeping family farm in
husbands family; evidence supported trial courts finding that decedent
lacked testamentary capacity during three-year period between last known
sighting of her lost will and her death, thus negating decedents ability to
have intentionally revoked her will. In re Estate of Roggli, 9/28/17,
Nashville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/roggli.ruby_.opn_.pdf

FAMILY LAW: When case was remanded to trial court with instructions
to increase fathers parenting time with couples child to at least 80 days,
factual findings of initial trial judge regarding childs best interest, which
were unchallenged and undisturbed in first appeal, should not have been
altered on remand by new trial judge when same evidentiary record
formed basis for trial courts decision with regard to parenting time, but
there was no reversible error with respect to parenting schedule actually
implemented on remand when order entered on remand complied with
directive to award father at least 80 days of parenting time with child
father was awarded 120 days of parenting time and father now has more
meaningful time in childs life; trial court erred in failing to include
fathers musician profit income and his employer-provided cell phone
fringe benefit in his income when calculating fathers child support
obligation; trial court correctly determined that mother should not get
credit for childcare expenses that were not work-related. In re Grace N.,
9/27/17, Nashville, Goldin, 28 pages.
http://www.tncourts.gov/sites/default/files/inregrace.n2opn.pdf
FAMILY LAW: Trial court erred in categorizing real property located on
Taggart Drive as husbands separate property when, while property was
acquired by husband pre-marriage, husband paid off mortgage owed on
property during marriage and used marital funds that he earned during
course of marriage to do so, at least in part, and, as such, husband
transmuted Taggart property into marital property when he expended these
significant amounts of marital income on paying off and remodeling Taggart
property; case is remanded to trial court for equitable distribution of marital
property in light of reclassification of Taggart property as marital property.
Givens v. Givens, 9/29/17, Knoxville, Swiney, 16 pages.
http://www.tncourts.gov/sites/default/files/givens_coa_opinion.pdf

GOVERNMENT: In case in which group of citizens filed action seeking

declaration that Jefferson County Economic Development Oversight
Committee (EDOC) is subject to provisions of Tennessee Public Records
Act (Act), because EDOC performs governmental function, receives
substantial amount of taxpayer funding, and is significantly involved with
and regulated by governing city and county legislative bodies, EDOC is
functional equivalent of governmental agency subject to provisions of Act.
Wood v. Jefferson County Economic Development Oversight Committee
Inc., 9/26/17, Knoxville, Susano, 22 pages.
http://www.tncourts.gov/sites/default/files/oliver_wood_opinion.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of

carrying firearm with intent to go armed when defendant placed loaded
handgun into cooler, he placed cooler on front seat of his vehicle, and he
admitted that he was carrying weapon for purpose of defending himself.
State v. Hirsch, 9/28/17, Nashville, Witt, 8 pages.
http://www.tncourts.gov/sites/default/files/hirsch.opn_.pdf

CRIMINAL PROCEDURE: In case in which defendant, former dispatcher

for sheriffs department, was convicted of eight counts of sexual exploitation
of minor involving over 100 images and two counts of sexual exploitation of
minor involving over 50 images, trial judge did not err by denying defendants
motion to suppress images discovered on defendants cell phone and laptop
computer by fellow dispatcher (Evans) when Evans was not acting as agent of
government when he discovered photos on defendants cell phone; regardless
of whether civilian dispatcher is considered functionary of law enforcement
or private person, search Evans conducted of defendants cell phone did not
amount to violation of defendants constitutional right to be free from illegal
searches and seizures given fact that Evans intent was to play a practical
joke on defendant, no one instructed him to search defendants phone, and he
never expected to find child pornography on phone. State v. Spray, 9/26/17,
Nashville, Glenn, 8 pages.
http://www.tncourts.gov/sites/default/files/spray.opn_.pdf

CRIMINAL PROCEDURE: In case in which defendants, along with 95

other co-defendants, were charged through presentment with conspiracy to
manufacture, sell, or deliver 300 grams or more of methamphetamine with at
least one defendant having committed overt act within 1,000 feet of school,
park, library, recreation center, or child care facility, trial judge properly
granted defendants motions to suppress evidence obtained during execution
of search warrants at their homes; because magistrate did not have authority
to issue search warrants for defendants homes, which were located outside
his judicial district, searches of defendants property were unconstitutional.
State v. Frazier, 9/25/17, Nashville, Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/frazierparks.opn_.pdf

TRIAL COURTS

INSURANCE: When plaintiffs, Protected Cell Captive Insurance Company

(captive) and claims administrator, entered into agreement with defendant
under which risk for payment of defendants employee medical benefits was
transferred to captive, plaintiffs assert that defendants claims ultimately
came in substantially in excess of anticipated dollar amount premium
payments were based upon and that more premium is owed based upon actual
claims, and plaintiff filed suit to recover $72,697 that it characterizes as
premium payments defendant allegedly owes related to medical care benefits
for defendants employees, gravamen of complaint is state law breach of
contract claim for compensatory damages of $72,497 and plaintiffs have sued
for compensatory damages under legal duty independent of ERISA or plan
terms; under these circumstances, suit does not come within provisions of 29
USC 1132(a)(3) of complete preemption of federal courts, and state court has
subject matter jurisdiction to decide case. Risk Solutions Captive Inc. v.
Evers Construction Co., 7/5/17, Davidson Chancery, Lyle, 26 pages.
https://www.tncourts.gov/node/4870445
COMMERCIAL LAW: In suit by industry leader (plaintiff) in
manufacturing, selling, and distributing cryogenic surgical products and
appliances used by doctors and veterinarians against former employee
conducting her newly founded business in same industry, summary
judgment is granted dismissing count alleging breach of contract
(confidentiality provisions) and count alleging misappropriation of trade
secrets under Tennessee Uniform Trade Secrets Act (TUTSA); all of
documents and information contained in defendants emails, while
information gained from employment with plaintiff, was not taken by any
improper means, but rather was maintained on her personal email because
she had used her personal email during her employment with plaintiff and
there was no established policy requiring its return, and hence, facts do not
constitute misappropriation under TUTSA. Cryosurgery Inc. v. Rains,
7/7/17, Davidson Chancery, Lyle, 38 pages.
https://www.tncourts.gov/node/4870446

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Because employee introduced no

evidence that any physician recommended surgery, she is not likely to
succeed at hearing on merits that she is entitled to second opinion. Purkey v.
MAC Trucking, 7/31/17, Knoxville, Lowe, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1869&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:
www.tncourts.gov