TAM-BYTES May 13, 2013 Vol. 16, No.

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2013 CLE CALENDAR Audio Conferences Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls, 60-minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern). Earn one hour of DUAL credit! Creditors Rights in Tennessee: 10 Collection Strategies, 60-minute audio conference presented by David Anthony, Nasville attorney, on Thursday, June 6 at 10 a.m. (Central), 11 a.m. (Eastern). Dividing Specialty Retirement Plans: A Primer for Tennessee Attorneys, 60-minute webinar presented by James D. Helton, Brentwood attorney, on Thursday, June 6 at 2 p.m. (Central), 3 p.m. (Eastern). Liability of Insurance Agents: The Ins and Outs of Handling Claims in Tennessee, 60-minute webinar presented by Chad Naffziger, Jackson attorney, on Tuesday, June 25 at 2p.m. (Central), 3 p.m. (Eastern). Slips, Trips, and Falls in Tennessee: Premises Liability and Defenses in Tennessee, 90-minute audio conference presented by Bryan Moseley, Murfreesboro attorney, on Wednesday, June 26 at 10 a.m. (Central), 11 a.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com IN THIS WEEKS TAM-Bytes Supreme Court holds TCA 29-26-121(c), which extends applicable statute of limitation 120 days when plaintiff provides pre-suit notice of potential claims in medical malpractice case, does not apply to cases governed by Governmental Tort Liability Act;

In split decision, Workers Comp Panel affirms trial courts finding that employees hearing loss claim was not barred by statute of limitation when employee was not medically diagnosed with permanent, work-related loss of hearing until after his employment had ended; Court of Appeals holds Tennessees parental relocation statute mandates that parent wishing to oppose relocation file petition in opposition within 30 days of receipt of notice of proposed relocation, and if no written petition in opposition is timely filed, parent proposing to relocate with child must be permitted to relocate, notwithstanding absence of harm or prejudice to relocating parent due to untimely petition; Court of Appeals says there is no authority that allows trial court to exercise its discretion to forgive one party from reimbursing another for overpayment of child support; Court of Criminal Appeals searching contents of defendants cell phone, including call records and text messages, is proper within scope of search incident to arrest; In DUI case, Court of Criminal Appeals holds evidence failed to establish that police officer had reasonable suspicion to stop defendants vehicle or that officer was acting in community caretaking role when defendant stopped his vehicle for several seconds at flashing yellow light before proceeding through intersection, and his actions did not violate rules of travel or endanger other motorists; and Court of Criminal Appeals says Missouri v. Frye holding that defense counsel has duty to communicate formal offers from prosecution to accept plea on terms and conditions that may be favorable to accused did not announce new rule of constitutional law to be applied retroactively. SUPREME COURT TORTS: By choosing not to use express language applying TCA 29-26-121(c), which extends 120 days applicable statutes of limitations and repose when pre -suit notice of potential claims is given in medical malpractice case, to cases governed by Governmental Tort Liability Act (GTLA), legislature did not intend to apply 120-day extension to GTLA statute of limitation. Cunningham v. Williamson County Hospital District, 5/9/13, Nashville, Holder, unanimous, 7 pages.
http://www.tncourts.gov/sites/default/files/cunninghamwopn_0.pdf

PROFESSION OF LAW: Supreme Court denies petition seeking to amend RPC 8.4 to add new paragraph making it professional misconduct for lawyer to engage, in professional capacity, in certain discriminatory conduct. In re Proposed Amendment to Supreme Court Rule 8, RPC 8.4, 5/10/13, Nashville, 2 pages.
https://www.tncourts.gov/sites/default/files/supreme_court_order_denying_petition_to_amend_supreme_court_rule_8__section_8_4.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees hearing loss claim was not barred by statute of limitation when employee was not medically diagnosed with permanent, workrelated loss of hearing until after his employment had end ed; trial courts refusal to charge employee, non-physician, with knowledge that his hearing loss was work-related was reasonable in light of evidence in case employee acknowledged that he noticed ringing in his ears as early as 1991, that he later noticed his loss of hearing, and that both conditions worsened over years, he testified that he thought these problems might have been caused by his noise exposure at work, but evidence also established that during his lengthy career, no one at employer told employee his hearing loss was work-related, and employee testified that he was not medically diagnosed with permanent, work-related hearing loss until after his retirement and after he had filed his claim for workers compensation benefits particularly since employees hearing loss occurred gradually as he aged from 20 to 59. Hardy v. Goodyear Tire & Rubber Co., 5/9/13, Jackson, Clark, partial dissent by Childress, 16 pages.
http://www.tncourts.gov/sites/default/files/hardydopn.pdf http://www.tncourts.gov/sites/default/files/hardydcon.pdf

COURT OF APPEALS COMMERCIAL LAW: In case in which parties lived together for about six years but never married, they formed partnership during that time for purpose of buying and selling real estate, parties bought, renovated, and sold numerous properties, and after they separated, they equally split remaining profits from property sales, but they could not agree as to who owned house where parties were currently living and various items of personal property acquired during their relationship, trial court properly ruled that all of disputed property was partnership property; it was intention of parties that house would be asset of partnership and not individual property of defendant, and plaintiff established by clear and convincing evidence that property was acquired for partnership purposes, although titled in defendants name alone, and it was necessary to impose resulting trust in order to prevent unjust enrichment; trial court properly ruled that household appliances and furnishings were partnership property owned one-half by each partner; neither lack of written conveyance nor statute of frauds will defeat plaintiffs claim that defendant was holding legal title to property for partnerships benefit. Finch v. Raymer, 5/6/13, WS, Highers, 24 pages.
http://www.tncourts.gov/sites/default/files/finchjeffopn.pdf

FAMILY LAW: Tennessees parental relocation statute, TCA 36-6-108, mandates that parent wishing to oppose relocation file petition in opposition within 30 days of receipt of notice of proposed relocation, and if no written petition in opposition is timely filed, parent proposing to relocate with child must be permitted to relocate, notwithstanding absence of harm or prejudice to relocating parent due to untimely petition; because father failed to file written petition in opposition to mothers proposed relocation within 30 days of receipt of her mothers certified letter fathers petition was filed three days late trial court erred in conducting any further analysis pursuant to TCA 36-6-108; trial courts decision denying mothers request to relocate is reversed, and mother is permitted to relocate to Omaha, Nebraska, with parties child. Rutherford v. Rutherford, 5/7/13, WS at Nashville, Highers, concurrence by Kirby, dissent by Stafford, 32 pages.
http://www.tncourts.gov/sites/default/files/rutherford_t._opn.pdf http://www.tncourts.gov/sites/default/files/rutherford_t._dissent_opn.pdf

FAMILY LAW: In case in which trial court determined that father had overpaid child support, trial court abused discretion in failing to award father credit or judgment in amount of his overpayment; there is no authority that allows trial court to exercise its discretion to forgive one party from reimbursing another for overpayment of child support. Huffman v. Huffman, 5/1/13, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/huffmanm_opn.pdf

COURT OF CRIMINAL APPEALS EVIDENCE: In first degree murder case involving two defendants, trial judge did not err in allowing witness to testify about statement made by co-defendant whose case was severed from defendants case witness testified that codefendant said, There go [sic] somebody we beefin with, and in response, driver of vehicle turned around and drove back up street so that occupants could fire at intended victims when statement was not hearsay in that it was not offered to prove truth of matter asserted, i.e., that occupants of vehicle had ongoing disagreement with one of victims, but, rather, was offered for its effect on listener(s), who turned vehicle around, brandished their weapons, and began firing at victims; trial court did not err in allowing state to admit audiotaped statement in which witness referred to defendant as his homeboy and homie, when terms were commonly used, and there had been no testimony that homie or homeboy were terms signifying gang affiliation. State v. Moody, 5/9/13, Nashville, Page, 18 pages.
http://www.tncourts.gov/sites/default/files/moodydeangelom.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of especially aggravated kidnapping and two counts of aggravated assault, because assaults involved some degree of confinement, proof fairly raised question of whether kidnapping offense occurred separately from aggravated assault, and White jury instruction should have been given; trial courts failure to provide jury with White instruction was harmless error when proof overwhelmingly established that victims confinement went beyond that necessary to accomplish aggravated assault. State v. McCray, 5/2/13, Nashville, Tipton, partial dissent by Woodall, 25 pages.
http://www.tncourts.gov/sites/default/files/mccrayglennlydellopn.pdf http://www.tncourts.gov/sites/default/files/mccrayglennlydellcon_1.pdf

EVIDENCE: In drug case, trial judge did not err in admitting cell phone text messages retrieved from defendants cell phone which was seized from defendant during search of his person incident to arrest; searching contents of defendants cell phone, including call records and text messages, is proper within scope of search incident to arrest. State v. Sayles, 5/3/13, Knoxville, Bivins, 25 pages.
http://www.tncourts.gov/sites/default/files/saylesdopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to DUI, trial judge erred in denying defendants motion to suppress when evidence failed to establish that police officer had reasonable suspicion to stop defendants vehicle or that officer was acting in community caretaking role; no evidence existed to support finding that officer had reasonable suspicion to believe that defendant was committing crime when defendant stopped his vehicle for several seconds at flashing yellow light before proceeding through intersection, and defendants actions did not violate rules of travel and did not endanger other motorists defendants was only vehicle other than officers that was present on roadway; although officer indicated that his purpose in stopping defendants vehicle was to perform welfare check, activation of officers emergency equipment was show of authority directed at defendant designed to force defendant to stop his car, and other than defendants remaining motionless during time that his car was stopped at flashing yellow light, no evidence of accident or other peril existed; judgment of trial court is reversed, and charge against defendant is dismissed. State v. McConnell, 5/8/13, Nashville, Witt, 5 pages.
http://www.tncourts.gov/sites/default/files/mcconnellthomasgopn.pdf

CRIMINAL PROCEDURE: Because time is not material ingredient to offense of initiation of process intended to result in methamphetamine, offense for which defendants were charged, trial court properly permitted state to amend date in indictment to reflect correct date of offense, which was two days before date reflected in indictments; time at which offense was committed need not be stated in indictment,

but offense may be alleged to have been committed on any day before finding thereof, or generally before finding of indictment, unless time is material ingredient in offense; manufacture of controlled substance, promotion of methamphetamine, and possession of unlawful drug paraphernalia are not lesser included offenses of initiation of process intended to result in methamphetamine. State v. Bustamonte, 5/7/13, Nashville, Wedemeyer, 27 pages.
http://www.tncourts.gov/sites/default/files/bustamonteand_carrollopn.pdf

CRIMINAL PROCEDURE: In post-conviction proceeding in which petitioner contended that his petition was not barred by statute of limitation because U.S. Supreme Courts holding in Missouri v. Frye, 132 SCt 1399 (2012) holding that defense counsel has duty to communicate formal offers from prosecution to accept plea on terms and conditions that may be favorable to accused established new constitutional right that did not exist at time of his guilty pleas, thereby requiring retroactive application, summary dismissal of petition is affirmed; petitioner alleged only that trial counsel failed to timely communicate formal offers for the prosecution, without alleging that counsel allowed plea bargain offer to expire without communicating it to him, that he would have accepted earlier plea bargain offer with more favorable terms, or that earlier, lapsed plea bargain would have been entered without the prosecution canceling it or the trial court refusing to accept it, and hence, Frye is inapplicable to petitioners case; Frye did not announce new rule of constitutional law to be applied retroactively. Robinson v. State, 5/2/13, Jackson, Glenn, 4 pages.
http://www.tncourts.gov/sites/default/files/robinsonbruceopn.pdf

SIXTH CIRCUIT COURT OF APPEALS PROFESSION OF LAW: In case in which district court disciplined attorney for unethical conduct, specifically, for filing fee petition in which attorney claimed fees for work that he himself had not entirely done, district court did not abuse discretion in either affording attorney process due to him or in finding by clear and convincing evidence that attorney committed misconduct. In re Justice, 4/30/13, per curiam, 5 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0433n-06.pdf

PUBLIC CHAPTER GOVERNMENT: Local governments may not, as condition of doing business within jurisdictional boundaries of local government or contracting with local government, require private employer to pay its employees hourly wage in

excess of minimum hourly wage required to be paid by such employer under applicable federal or state law. 2013 PC 91, effective 4/11/13, 4 pages.
http://www.tn.gov/sos/acts/108/pub/pc0091.pdf

ATTORNEY GENERAL OPINION GOVERNMENT: No rational basis exists for narrow population classification created by 2012 PC 1077 for Williamson County that suspends general law permitting high school students to graduate early, and with fewer credits, contingent upon certain requirements being met, and hence, classification is invalid class legislation. Attorney General Opinion 13-37, 5/2/13, 4 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-37.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 email 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/