TAM-BYTES

October 23, 2017

Vol. 20, No. 43

TAM Webinars

Jury Selection: The Art of Asking the Right Questions, 60-minute webinar
presented by Emily Taylor, with Watson, Roach, Batson, Rowell & Lauderback
in Knoxville, on Thursday, December 7, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/jury-120717
or call (800) 727-5257

Legal Ethics Update: Cloud Computing, Mobile Technology, and Other

Law Practice Challenges, 60-minute webinar presented by Russell Belk,
with Sutherland & Belk in Nashville, on Wednesday, December 13, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/ethics-121317
or call (800) 727-5257

Attorney ESI Update: How to Uncover and Use Social Media Evidence
for Maximum Case Benefit, 60-minute webinar presented by Marcus
Chatterton, with Balch & Bingham in Birmingham, on Wednesday,
December 13, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/social-121317
or call (800) 727-5257

Ethics Update from the Tennessee Board of Professional Responsibility,

60-minute webinar presented by Eileen Burkhalter Smith, Disciplinary
Counsel with the Board of Professional Responsibility in Brentwood, on
Thursday, December 14, at 10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/ethics-121417
or call (800) 727-5257

Cyber-Theft and Data Breaches: What to Do When Your Tennessee

Client is Hacked, 60-minute webinar presented by Russell Taber, with
Riley, Warnock & Jacobson in Nashville, on Thursday, December 14, at 2
p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cyber-121417
or call (800) 727-5257
Tips for Investigating and Trying Trucking Accident Cases in
Tennessee, 60-minute webinar presented by Drayton Berkley, with The
Berkley Law Firm in Memphis, on Tuesday, December 19, at 2 p.m.
(Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/trucks-121917
or call (800) 727-5257

On-Site Event

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 clarifies when trial court and appellate court may
suggest remittitur;
Supreme Court rules that by introducing evidence that collateral was
sold for amount equal to or in excess of its fair market value, creditor
may sufficiently rebut presumption and create question of fact as to
whether sale of collateral still would have yielded proceeds less than
sum of secured obligation, expenses, and attorney fees had proper
notice been provided;
Supreme Court rules that Tennessee Uniform Trust Code gives
trustees power to enter into predispute arbitration agreements, so long
as doing so is not prohibited under operative trust instrument, and
finds that trust instrument did not prohibit trustee from entering into
predispute arbitration agreement;
In case of first impression, Court of Appeals holds TCA 44-8-413
abrogates any common law claim that may have existed prior to
statutes enactment in which claimant in dog bite case is not
required to show that owner knew or should have known of dogs
dangerous propensities;
Court of Appeals rules 2016 amendment, which applies to will
executed prior to 7/1/16 and states that witness signatures affixed to
affidavit shall be considered signatures to will, applies to all wills
executed prior to 7/1/16, notwithstanding whether testator died before
law went into effect;
Court of Criminal Appeals rules, in attempted second degree murder
case, trial judge did not abuse discretion by admitting Facebook photo
of defendant posing with two handguns to connect defendant to
handgun used in shooting;
Court of Workers Compensation Claims rules pre-injury
occupation in context of TCA 50-6-242, which allows court to
increase employees award of permanent partial disability, refers to
job held by employee at time of injury, rather than job within class of
employment in which employee worked at time of injury; and
Board of Professional Responsibility opines that interstate law firm
partnerships are permitted in Tennessee so long as they comply with
Rules of Professional Conduct.
SUPREME COURT

TORTS: Absent finding that jury's award as remitted by trial court

exceeds uppermost boundary of range of reasonableness, Court of Appeals
had no authority to suggest further remittitur, and hence, remittitur of award
for loss of enjoyment of life suggested by Court of Appeals from $400,000
as remitted by trial court down to $50,000 is reversed; as to trial court's
remittitur, proof on plaintiff's damages was conflicting, and resolution of
issues regarding damages depended upon assessment of witnesses'
credibility by jury and also by trial court sitting as thirteenth juror; under
these circumstances, trial court's failure to indicate reasons for suggesting
remittitur trial court suggested total remittitur of $1,605,000, reducing total
award from $3,705,000 to $2,100,000 leaves appellate court unable to
engage in meaningful review of trial court's remittitur decision; case is
remanded to trial court for explanation of its reasons for suggesting
remittitur of jury's award; because Court of Appeals was likewise without
sufficient information to perform meaningful review of trial court's
remittitur, Court of Appeals' decision to reverse trial court's remittitur of
award for lost earning capacity is vacated. Borne v. Celadon Trucking
Services Inc., 10/20/17, Jackson, Kirby, partial dissent by Lee, 61 pages.
http://www.tncourts.gov/sites/default/files/borne.donriel.opn_.pdf
http://www.tncourts.gov/sites/default/files/borne.donriel.sep_.opn_.pdf

COMMERCIAL LAW: Secured creditor is not required to introduce

evidence negating debtor's or guarantor's ability or motivation to redeem or
purchase collateral for amount equal to sum of secured obligation, expenses,
and attorney fees in order for creditor to rebut presumption under codified
rebuttable presumption rule and create question of fact; by introducing
evidence that collateral was sold for amount equal to or in excess of its fair
market value, creditor may sufficiently rebut presumption to create question
of fact as to whether sale of collateral still would have yielded proceeds less
than sum of secured obligation, expenses, and attorney fees had proper
notice been provided; in cases in which statutorily required notice has not
been provided, evidence of debtor's or guarantor's ability and motivation to
redeem or purchase collateral for amount equal to sum of secured obligation,
expenses, and attorney fees may be relevant to ultimate determination of
amount of proceeds that would have been realized had secured creditor
provided statutorily required notice. Regions Bank v. Thomas, 10/16/17,
Jackson, Bivins, unanimous, 30 pages.
http://www.tncourts.gov/sites/default/files/regionsbankv.thomsa.corr_.opn_.pdf
ESTATES & TRUSTS: When trustee of trust executed
investment/brokerage account agreement that included provision requiring
arbitration of disputes, trust beneficiary filed suit asserting claims against
investment broker, and defendant broker sought to compel arbitration under
arbitration provision of account agreement, Tennessee Uniform Trust Code
(UTC) gives trustees power to enter into predispute arbitration agreements,
so long as doing so is not prohibited under operative trust instrument; trust
instrument gave trustee broad authority and did not prohibit trustee from
entering into predispute arbitration agreement; third-party beneficiary who
did not sign contract containing arbitration provision may be required to
arbitrate claims against signatory to contract; trust beneficiary may be bound
to arbitrate claims against investment broker that seek to enforce account
agreement; case is remanded to trial court for further proceedings, including
determination as to which, if any, of claims asserted by trust beneficiary
seek to enforce account agreement. Harvey ex rel. Gladden v. Cumberland
Trust & Investment Co., 10/20/17, Knoxville, Kirby, unanimous, 37 pages.
http://www.tncourts.gov/sites/default/files/harvey.wade_.corr_.opn_.pdf

WORKERS COMP APPEAL BOARD

WORKERS COMPENSATION: Because referring physician was not

selected from panel of physicians in accordance with TCA 50-6-
204(a)(3)(A)(i), by its express terms, TCA 50-6-204(a)(3)(A)(ii), referral
statute, is not applicable; specialist was authorized treating physician and
employee is entitled to resume treatment with him when employer did not
provide panel of physicians when it became aware of employees injury,
directing him instead to particular medical facility, employee was referred
for specialized care, employer still did not provide panel of physicians but
paid for medical treatment employee received from specialist, employer has
offered no rationale for refusing to authorize further treatment with specialist
and requiring employee to begin treating with another physician other than
to assert its statutory right to provide panel of physicians and employees
selection of physician from panel, and although employee complied with
employers request that he choose physician from panel, he did so upon
understanding that his benefits could be terminated if he did not select
physician from employers belatedly-offered panel. Ducros v. Metro
Roofing & Metal Supply Co., 10/17/17, Hensley, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1934&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1886&context=utk_workerscomp

WORKERS COMPENSATION: When employee suffered pain in his knee

after stepping through rotten deck board on loading dock, employer accepted
claim as compensable, employee underwent total knee arthroplasty, Dr. Fiala,
treating physician, discussed possibility that employee was suffering from
complex regional pain syndrome (CRPS) and recommended that employee be
referred to Dr. Hazlewood to help as[s]ess and make RX rec and help
manage if he agreed with CRPS, report also stated, FU 1 mo or as soon as
approved and consult with Haz[le]wood complete, employer scheduled
appointment for employee to see Hazlewood, but employee objected and
requested panel of pain management specialists, and employee filed Petition
for Benefit Determination and, following issuance of Dispute Certificate
Notice, motion to compel panel of physicians, trial court properly ruled that
Fialas request for consult with Hazlewood did not constitute referral for
pain management pursuant to TCA 50-6-204(j); Fialas report, on which both
parties relied, did not constitute referral for pain management treatment as
described in TCA 50-6-204(j)(1) and did not fall within TCA 50-6-
204(a)(3)(A)(ii). Tapley v. Transport National, 10/19/17, Conner, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1937&context=utk_workerscomp

COURT OF APPEALS

TORTS: When parents filed suit against dog owners following their minor
sons injury from dog bite that occurred at owners home, trial court
properly granted dog owners motion for summary judgment on basis that
parents failed to show that owners knew or should have known of their dogs
dangerous propensities as required by TCA 44-8-413; TCA 44-8-413
abrogates any common law claim that may have existed prior to statutes
enactment in which claimant in dog bite case is not required to show that
owner knew or should have known of dogs dangerous propensities. Searcy
v. Axley, 10/19/17, Jackson, Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/searcycoreyopn.pdf

TORTS: When defendants represented plaintiff in trademark infringement

and consumer protection lawsuit in federal court that resulted in judgment
against plaintiff and when plaintiff filed suit more than one year after federal
court judgment, trial court properly granted defendants summary judgment
based on statute of limitation; plaintiffs injury stemming from defendants
representation in federal case and plaintiffs knowledge of that alleged injury
occurred on day that district court entered judgment against plaintiff.
Thomas v. Myers, 10/19/17, Jackson, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/thomasmarkopn.pdf

PROPERTY: Trial court properly found that restrictive covenants

governing subdivision did not apply to adjacent undeveloped property and
properly refused to enforce negative reciprocal easements by implication
from alleged common development plan when restrictive covenants, by
their express terms, do not apply to undeveloped property. Lutzak v.
Phoenix American Development Partners L.P., 10/18/17, Nashville,
McBrayer, 10 pages.
http://www.tncourts.gov/sites/default/files/lutzak.dianne.opn_.pdf

ESTATES & TRUSTS: When contestant insisted purported will of decedent,

dated 6/19/15, was invalid because attesting witnesses, who executed
attestation affidavit failed to affix their signatures to will as required by
Tennessee Execution of Wills Act at time will was executed, and proponent
insisted will was validly executed based on 2016 amendment to TCA 32-1-
104, which applies to wills executed prior to 7/1/16 and states to the extent
necessary for the Will to be validly executed, witness signatures affixed to an
affidavit meeting the requirements of [TCA] 32-2-110 shall be considered
signatures to the Will, trial court erred in ruling that 2016 amendment did not
apply because testator died before it went into effect; legislature intended for
2016 amendment to apply to all wills executed prior to 7/1/16, notwithstanding
whether testator died before law went into effect; retrospective application of
2016 amendment does not impair any of vested rights of decedents father, heir
at law. In re Estate of Stewart, 10/20/17, Nashville, Clement, 14 pages.
http://www.tncourts.gov/sites/default/files/estateofveronica_stewart.opn_.pdf

ESTATES & TRUSTS: Trial court correctly determined that settlors

holographic notations were not sufficient to manifest clear intent to modify
her trust when settlor did not make her changes in separate instrument, she
did not sign or initial her handwritten changes, she did not communicate her
changes to anyone or deliver copy of annotated trust document to another
person, and there was no evidence that settlor performed any other action to
evince intent to change terms of original trust. In re Elizabeth Beck
Hoisington Living Trust, 10/19/17, Jackson, Armstrong, 7 pages.
http://www.tncourts.gov/sites/default/files/inrehoisingtonlivingtrustopn.pdf

FAMILY LAW: In divorce case, evidence did not preponderate against trial
courts enforcement of terms of parties post-nuptial agreement, including
provision allowing for award of attorney fees to prevailing party who was
attempting to defend agreement; trial court appropriately considered Child
Support Guidelines when evaluating child support provision contained
within parties post-nuptial agreement, and based on special needs of parties
children and extraordinary expenses associated with their care, determined
that upward deviation was warranted and in best interest of children. Pandey
v. Pandey, 10/16/17, Nashville, Frierson, 18 pages.
http://www.tncourts.gov/sites/default/files/pandey.belinda.amended.opn_.pdf
COURT OF CRIMINAL APPEALS

EVIDENCE: In attempted second degree murder case, trial judge did not
abuse discretion by admitting Facebook photograph of defendant posing
with two handguns when photo did not constitute evidence of prior bad act
as contemplated by TRE 404(b); photo was probative as it tended to
connect defendant to handgun used in shooting and, thereby, to support
victims identification of defendant as shooter TBI agent testified that
weapon used in shooting was visually consistent with handgun held by
defendant in his right hand in photo. State v. Robinson, 10/18/17,
Nashville, Holloway, 14 pages.
http://www.tncourts.gov/sites/default/files/robinson.opn_.pdf

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

counts of attempted child rape of his stepdaughter, trial court did not err by
failing to require state to make election of offenses when trial courts
instructions to jury and verdict forms prevented any patchwork verdict and
ensured jury unanimity on each count of indictment; purpose of election of
offenses is to prevent state from presenting evidence of multiple incidents
that would satisfy allegation contained in single indictment count; evidence
showed that three incidents involved touching victims genital area and
buttocks and that incidents occurred when defendant and victim lay in bed or
sat on chair covered by blanket, and jury could have reasonably construed
that defendants touching was for purpose of sexual arousal or gratification.
State v. Mabe, 10/18/17, Nashville, Montgomery, 27 pages.
http://www.tncourts.gov/sites/default/files/mabe.opn_.pdf

CRIMINAL PROCEDURE: In case in which defendant was approached on

street by two police officers based on anonymous complainant who had
reported that defendant and his companion were in argument, that defendant
was armed, and that defendant had warrants out for his arrest, upon
questioning by officers, defendant admitted that he was armed, and as result,
defendant was subsequently indicted and convicted of being felon in
possession of firearm and of being felon in possession of handgun, trial judge
did not err in allowing officer to testify about anonymous complainants call
to 911; trial judge did not abuse discretion by determining that officers
testimony about anonymous complainants statements was not inadmissible
hearsay evidence that defendant was armed was presented through officers
testimony about what defendant said and did, i.e., admitting to possessing
weapon. State v. Milon, 10/19/17, Jackson, Wedemeyer, 7 pages.
http://www.tncourts.gov/sites/default/files/milon_eric_opn.pdf
CRIMINAL PROCEDURE: Evidence did not preponderate against post-
conviction courts denial of relief to petitioner from his first degree felony
murder conviction and his sentence of death, in connection with petitioner
having raped and stabbed elderly victim in Memphis parking garage in 1991,
when petitioners trial counsel was not ineffective. Odom v. State, 10/20/17,
Jackson, Ogle, 82 pages.
http://www.tncourts.gov/sites/default/files/odom_richard_lloyd_opn.pdf

TRIAL COURTS

COMMERCIAL LAW: When limited liability company (LLC) acquired

agreement to purchase property, LLC was unable to raise capital to buy
property, LLC contributed assignment of Purchase Agreement to general
partnership it formed with another company which contributed capital for
general partnership to buy and own property, status of property is that
general partnership is looking to sell property and LLC has right of first
refusal if buyer makes offer, that acquisition of property occurred in manner
it did has resulted among parties in differing constructions and application of
LLC Operating Agreement related to status and percentages of parties LLC
memberships, plaintiffs claim that four investors hold combined 49%
memberships in LLC and defendants holds 51% membership interest,
plaintiffs also claim they remain members of LLC and that no redemption
has occurred, and defendant claims that he holds 81.15% membership
interest and that memberships of other four parties have been redeemed,
Operating Agreement was not amended when, under agreement, defendant
controlled 51% of voting power when he attempted to amend Operating
Agreement before Westin and Presnell were members, and he did not hold
75% super-majority to unilaterally amend Operating Agreement; defendants
disputed $200,000 contribution did not constitute capital contribution that
gained him more membership percentage because he did not control 75%
super-majority of LLCs voting power and he failed to honor plaintiff
investors preemptive rights; investors membership interests were not
redeemed because LLC did not finance purchase of property under
Operating Agreement by admitting new members, and Escrow Agreement
does not function as redemption event because it does not state that it serves
that function. Baurle v. Kelty, 8/4/17, Davidson Chancery, Lyle, 34 pages.
https://www.tncourts.gov/node/4870439

COMMERCIAL LAW: When defendant filed motion to disqualify

Preston as counsel of record for plaintiffs because interests of individual
plaintiffs and plaintiff LLC are adverse because defendants Declaration
and Answer assert wrongful conduct taken by individual plaintiffs against
LLC and because Preston, in his role as attorney for LLC prior to this suit,
has been privy to information that could be used against LLC and its
president if Preston were to continue to represent individual plaintiffs, and
defendant asserts that as majority voting interest of LLC he had discharged
Preston as counsel for LLC and has retained new counsel, defendants
motion to disqualify Preston as counsel of record for plaintiffs is denied,
based on lack of ripeness and ambiguity of Operating Agreement on voting
rights, without prejudice to reassert disqualification if defendant files claims
on behalf of LLC, such as breach of fiduciary duty or mismanagement
against some of individual plaintiffs. Scobey v. Strong, 8/15/17, Davidson
Chancery, Lyle, 16 pages.
https://www.tncourts.gov/docs/documents/judicial-resources/biz-court-scobey-v-strong-17-691-bc-8-23-17pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee felt pop in his right

shoulder while lifting golf-cart battery at work, suffering rotator cuff and
biceps tendon injuries, employee appears likely to prevail at hearing on
merits that his workplace accident was primary cause of his injury; when
employee presented uncontroverted evidence during hearing that his
personal expenses totaled $3,756, but he presented no medical evidence
that these expenses were reasonable and necessary, court cannot order
payment of these expenses at this time; when employers owner testified
that employee stole and sold golf cart, while employee testified that he had
permission to take and sell cart, employee failed to meet his burden of
proving he is likely to prevail on issue at hearing on merits of whether he
was fired for misconduct and not entitled to temporary disability benefits;
TCA 50-6-226(d)(1)(B) does not require determination of fee requests at
an interlocutory stage of the case, and employees request for fees at this
time is denied. Perry v. Gold Carts Fore Less, 8/16/17, Murfreesboro,
Tipps, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1885&context=utk_workerscomp

WORKERS COMPENSATION: In case in which employee, delivery

driver, who felt pop followed by immediate pain while bending to shrink-
wrap pallet of merchandise, was diagnosed with large herniation disc, and
had disc surgically removed, employee did not establish by preponderance
of evidence that his spinal injury totally incapacitated him from working at
any occupation that brings him income, and hence, his claim for permeant
total disability benefits is denied; employee was entitled to extraordinary
relief under TCA 50-6-242(a), which allows court to increase employees
award of permanent partial disability above those provided in TCA 50-6-
207(3) if employee establishes criteria set forth in statute; employer
contended employee did not establish third statutory factor authorized
treating physician certified on form provided by Bureau of Workers
Compensation that due to permanent restrictions on activity employee has
suffered as result of injury employee no longer has ability to perform
employees pre-injury occupation because doctor limited his
certification of employees disability to whether employee could return to
work at employer, but plain meaning of employees pre-injury occupation
in context of TCA 50-6-242 refers to job held by employee at time of injury.
Batey v. Deliver This Inc., 8/18/17, Murfreesboro, Wyatt, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1887&context=utk_workerscomp

FORMAL ETHICS OPINION

PROFESSION OF LAW: Interstate law firm partnerships are permitted so

long as they comply with Tennessee Rules of Professional Conduct;
interstate law firm partnerships may lease space from title company if there
is distinct separation between law firm and title company with regard to use
of stationery, cards, announcements, names on doors, etc. Formal Ethics
Opinion 2017-F-164, 10/13/17, 5 pages.
http://www.tbpr.org/ethic_opinions/2017-f-164-proposed-interstate-law-firm-setco-law

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