TAM-BYTES

October 6, 2014
Vol. 17, No. 40
2014 TAM CLE CALENDAR
Webinars
Marketing Solo and Small Law Firms Online: practical and Ethical Issues
for Attorneys, 60-minute audio conference presented by John Watts,
Birmingham attorney, on Wednesday, October 29, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit.

Streamlining Child Support Recovery: A Step-by-Step Process for
Tennessee Attorneys, 60-minute audio conference presented by Thomas J.
Dancison, Jr., Pulaski attorney, on Thursday, October 30, 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 attorney, on Tuesday, November 4, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit.

Estate Planning in Tennessee: Protecting the Family Wealth, 60-minute
webinar presented by David Heller, Nashville attorney, on Wednesday,
November 5, 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 us at www.mleesmith.com

On-Site Events
Probate & Estate Planning Conference for Tennessee Attorneys
NEXT WEEK!!
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting QTIPs,
GRATs, and QPRTs, will drafting in 2014, the intersection of family law and
estate planning issues, use of Medicaid-compliant annuities, hot topics in probate
litigation, practicing in probate court, and updates on issues related to trusts,
estate planning, and probate. Also, hear about ethical issues arising when crafting
a healthcare power of attorney, a living will, or an advance care plan and ethical
issues arising in estate administration, such as client confidentiality, billing
inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank
of America Private Wealth Management; Harlan Dodson, Dodson, Parker,
Behm & Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell,
Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L.
Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley,
Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim
Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright,
CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for injuries
occurring on or after July 1, 2014, as well as how claims will be decided by the
claims courts; compliance issues for attorneys subject to HIPAA; latest
developments in medical malpractice, including how the appellate courts have
ruled on compliance with the pre-suit notice and certificate of good faith
requirements; how to embrace your inner digital lawyer and get up to date on
issues such as mobile computing, file management, and the risks of going
mobile; what every litigator needs to know about business entity laws in
Tennessee; latest developments in the family law area; checklist for provisions to
be included in a will today; recent changes to the rules on computer calls; how to
use a little-known VA benefit to aid your clients; overview of the administrative
process in Tennessee from an experienced chancellor; ins and outs of standards
of review and the scope of the appellate practice from an appellate court judge;
tips from a chancellor on pretrial motion practice; an insiders perspective from
the Chief Disciplinary Counsel on the Boards recent developments; how to
avoid e-discovery ethical pitfalls and how to handle social media, e-mail, video,
and other electronically stored information; and insight from a former trial judge
and now special judge on displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge
Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen
Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy,
Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright
Daves & Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella
PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Kevin
Levine, DeSalvo & Levine PLLC; Helen S. Rogers, Rogers, Kamm & Shea;
Lucas R. Smith, Bass, Berry & Sims PLC; Richard Spore, Bass, Berry & Sims
PLC; Elizabeth Warren, Bass, Berry & Sims PLC; and John Watts, Watts &
Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

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Tennessee Workers Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs

HI GHLI GHTS: Gain insight from new judges on the Court of Workers
Compensation Claims and the Workers Compensation Appeals Board; get
review of changes that took effect on July 1 -- including the new permanent
partial disability formula, the new standard developing medical proof regarding
causation, adjustments to physician panel process, and modification issues; gain
insight from Department of Labor and Workforce Development directors on
employee misclassification, new request for assistance process, and
ombudsman program; hear a doctors perspective on everyday pain management
of workers comp claims; the Attorney Track features an extended session, along
with a panel discussion, on how the new court system will work, as well as a
session on ethical issues arising under the new law; the Employer Track covers
issues such as the new procedure for obtaining medical records, claims
management, workers comp defenses, best practices for preventing retaliatory
discharge, issues that arise when employees are injured in transit, and supervisor
training in managing claims under the new law; and get a review of the latest
cases from the Tennessee Supreme Court and the Workers Compensation
Appeals Panels.

FACULTY: Judge Tim Conner, Workers Compensation Appeals Board judge;
Chief Judge Ken Switzer, chief judge of the Court of Workers Compensation
Claims; Judge Pam Johnson, Judge Allen Phillips, and Judge Jim Umsted, of
the Court of Workers Compensation Claims; Robert Durham, Director of
Benefit Review with the Department of Labor & Workforce Development;
Richard Murrell, Director of Quality Assurance with the Department of Labor
& Workforce Development; Scott Yarbrough, Director of the Compliance
Program at the Department of Labor & Workforce Development; attorneys Mary
Dee Allen, Fred Baker, Philip Baker, Leslie Bishop, Kitty Boyte, Allison
Cotton, John Dreiser, Jason Ensley, Pele Godkin, Greg Grisham, Steve
Karr, Mary Beth Maddox, Blake Matthews, Julie Reasonover, and Kenny
Veit, and Dr. Jeffrey Hazlewood, who practices physical medicine and
rehabilitation in both Lebanon and Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.

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Family Law Conference for Tennessee Practitioners
Thursday & Friday, December 4-5
Nashville School of Law

TOPI CS: The Family Law Conference for Tennessee Practitioners packs two
days with judges and leading authorities delivering critical family law practice
guidance on the hottest topics and some of the most complex issues youll face,
including, the impact of current technology on divorce discovery, obtaining
restraining/protection orders in cases involving domestic violence, the standard
for changing custody, the effect of cohabitation on alimony, common
evidentiary issues in domestic relations litigation, relocation of the primary
residential parent, drafting tips for prenuptial agreements, agency and DCS
adoption issues, factors to consider in making an equitable division of a marital
estate, a wireless and paperless law office, imputing income to an
unemployed/underemployed parent, ethical considerations for family law
practitioners, and locating, valuing, and dividing assets.

FACULTY: Judge Mike Binkley, circuit court, 21
st
Judicial District; Judge Robert
L. Childers, Shelby County circuit court; Judge Jeff Hollingsworth, Hamilton
County circuit court; and Judge Phillip Robinson, Davidson County circuit court;
and attorneys, Amy J. Amundsen, Memphis; Rebecca Byrd, Franklin; Dawn
Coppock, Strawberry Plains; Lisa J. Hall, Knoxville; Larry Hayes, Jr., Nashville;
Sean Martin, Nashville; Kevin Shepherd, Maryville; and Greg Smith, Nashville.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

Tennessee Real Estate Law Conference
Friday, December 12
Nashville School of Law

TOPI CS: Learn about commercial development and financing in todays
economy; hear about pitfalls in foreclosure proceedings, loss mitigation
solutions, and effects of bankruptcy on foreclosure; get up to date on the new title
insurance endorsements that affect both residential and commercial real estate
law; learn about the impact of the ability-to-pay and mortgage servicing rules that
took effect on January 10; get tips on how to perfect and enforce liens against
real property; get refreshed on ethical concerns facing real estate attorneys, such
as conflict of interest and multiple representations; get up to date on recent
developments in the appellate courts and the legislature; and hear about other
hot topics that affect real estate practitioners in 2014 and beyond.

FACULTY: Kim A. Brown, Sherrard & Roe PLC; Joshua R. Denton, Gullett
Sanford Robinson & Martin PLLC; Robert C. Goodrich Jr., Stites & Harbison,
PLLC; Linda W. Knight, Gullett Sanford Robinson & Martin PLLC; David
Wilson Long, Long, Ragsdale & Waters, P.C.; Madison L. Martin, Stites &
Harbison PLLC; William L. (Billy) Rosenberg, First American Title Insurance
*Earn up to 7.5 hours of CLE credit, including 1 hour of DUAL credit.

For more information or to register for any of TAMs CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court holds, in capital murder case, that information provided by
citizen/bystander witness, who is known to police, is presumed to be
reliable and that application of this presumption of reliability is not
conditioned upon showing that citizen informant was motivated to act
either in interest of society or in interest of his or her own safety;
Court of Appeals holds garnishee, executrix of estate, liable for failure to
honor garnishment by distributing funds from estate to judgment debtor
after garnishee had been properly served notice of garnishment and her
attorney had assured judgment creditor that his judgment would be paid
from judgment debtors share of estate;
Court of Appeals reverses trial courts grant of request by various media
outlets, pursuant to Tennessee Public Records Act, for access to records
accumulated and maintained by police department in course of its
investigation and prosecution of alleged rape in Vanderbilt University
campus dormitory;
Court of Appeals rules TCA 10-7-504(h), exception to Tennessee Public
Records Act, which treats identities of all persons who have been or shall
be involved in process of executing death sentence as confidential, does
not create privilege that protects identities of John Doe defendants
involved in execution process from pretrial discovery; and
Court of Criminal Appeals, in second degree murder case, rules that
although trial judge erred in abbreviating voir dire and jury selection,
preventing defendant from invoking her last two peremptory challenges,
error was harmless.


SUPREME COURT

CRIMINAL PROCEDURE: Defendants six premeditated first degree murder
convictions and his three attempted murder convictions are affirmed; information
provided by citizen/bystander witness known to police is presumed to be reliable,
and prosecution is not required to establish either credibility of informant or
reliability of this information; defendants request to speak to officers other than
those conducting interview did not amount to invocation, ambiguous or
unambiguous, of his right to remain silent; death sentences imposed upon
defendant were neither excessive nor disproportionate to sentences imposed on
similar offenders for similar crimes. State v. Dotson, 9/30/14, Jackson, Clark,
concurrence by Koch & Lee, 121 pages.
http://www.tncourts.gov/sites/default/files/dotsonj_opn.pdf
http://www.tncourts.gov/sites/default/files/dotsonj_conopn.pdf
http://www.tncourts.gov/sites/default/files/dotsonj_opn_-_appendix.pdf


COURT OF APPEALS

EVIDENCE: In case in which plaintiff, while driving from Mayland to
Monterey with her boyfriend and aunt, ran out of gas, they turned around and
tried to get car back to Mayland by combination of running on fumes and
pushing car, when they could push no longer, plaintiff parked car on side of road,
because there was parallel ditch on shoulder of road, part of car extended into
roadway, plaintiff stayed with car while others went for gas, defendants car
struck back of plaintiffs car, and jury found plaintiff and defendant were each
50% at fault, admission of boyfriends deposition was troubling when statements
suggesting that boyfriend had moved were inadmissible hearsay and when
statements of current tenant in house where boyfriend resided at time of
deposition, and of landlord, arguably established little more than fact that
boyfriend had changed his residence, not that he had moved out of county or was
more than 100 miles from place of trial at time of trial; any error in admitting
boyfriends deposition was harmless when boyfriends deposition testimony was
almost entirely consistent with, and cumulative to, that of plaintiff and aunt; trial
court did not err in admitting testimony of state trooper regarding cell phone
voice message that he listened to shortly after accident when trooper heard
plaintiffs voice after accident and testified that he recognized it as one on voice
message; TRE 803(1.2) does not require statement be against interest as
condition for admissibility as party-opponent admission. Bilbrey v. Parks,
9/29/14, ES, Susano, 29 pages.
http://www.tncourts.gov/sites/default/files/bilbreyalopn.pdf

CONTRACTS: In suit for breach of oral contract, when parties entered into
handshake agreement in which plaintiff agreed to provide equipment used to
fulfill construction contract between defendant and City of Athens, while
defendant agreed to pay for use of equipment, valid contract was formed between
parties, and defendant breached contract when it refused to remit remainder of
amount owed; trial court did not err in denying defendants counterclaim for
negligent misrepresentation relating to failure of plaintiffs owners to include cost
of concrete testing in initial estimate when final bid was submitted after parties
received addendum providing that contractor was responsible for cost of concrete
testing, this information was equally available to all parties, parties discussed issue
of concrete testing on multiple occasions, and plaintiff, sophisticated business,
should have inquired further before submitting its bid. MSK Construction I nc. v.
Mayse Construction Co., 9/30/14, ES, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/mayseopn.pdf

COMMERCIAL LAW: In accordance with TCA 34-6-110(a), power of
attorney did not authorize attorney-in-fact to make gifts; broad language upon
which attorney-in-fact relied related only to principals medical needs; power of
attorney does not reference TCA 34-6-110(a)(1) or give attorney-in-fact type of
authority described therein; even accepting as true attorney-in-facts statements
concerning principals history of making gifts, these factual statements were not
sufficient to justify large amounts of money attorney-in-fact gave to herself and
her husband. I n re Conservatorship of Patton, 9/26/14, MS, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/inreconservatorshipofpattonopn.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of
mothers parental rights to her child on ground of persistence of conditions when
child was removed from mothers home due to mothers drug use, but, other than
social media accounts indicating that mother may be maintaining relationship
with someone involved in drugs, and her alleged continued use of alcohol, there
is no evidence that mother has continued to abuse drugs; mothers continued
relationship with father, who pled guilty to drug charges, while quite troubling
fails to establish high burden of clear and convincing standard that conditions that
led to childs removal, i.e., mothers drug use, still persist; evidence did not
preponderate against termination of mothers parental rights on ground of severe
child abuse. I n re J ayden G., 9/30/14, WS, Stafford, 18 pages.
http://www.tncourts.gov/sites/default/files/inrejaydengopn.pdf

CIVIL PROCEDURE: Trial court did not err in holding garnishee, executrix of
estate, liable for failure to honor garnishment by distributing funds from estate to
judgment debtor, estate beneficiary, when after garnishee was served notice of
garnishment and her attorney assured plaintiff, judgment creditor, that judgment
would be paid from judgment debtors share of estate, garnishee distributed
monies to judgment debtor as part of her inheritance well in excess of
garnishment amount; although precise amount of judgment debtors inheritance
under will she was to receive one-third of her mothers estate was uncertain,
there was no contingency or uncertainty about judgment debtors claim and
entitlement to her interest in estate, and hence, judgment debtors interest was
attached by garnishment. Stocklin v. Lord, 9/29/14, ES, Susano, 10 pages.
http://www.tncourts.gov/sites/default/files/stocklinlopn.pdf

GOVERNMENT: In case in which trial court granted request by various media
outlets, pursuant to Tennessee Public Records Act, for access to records
accumulated and maintained by police department in course of its investigation
and prosecution of alleged rape in Vanderbilt University campus dormitory,
because records sought are exempt from disclosure due to continuing police
investigation and pending criminal prosecution, trial courts judgment is
reversed. Tennessean v. Metropolitan Government of Nashville, 9/30/14, MS,
Dinkins, dissent by McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/thetennesseanv.metropolitangov.opn_.pdf

GOVERNMENT: TCA 10-7-504(h), exception to Tennessee Public Records
Act, which treats identities of all persons who have been or shall be involved in
process of executing death sentence as confidential, does not create privilege
that protects identities of John Doe defendants involved in execution process
from pretrial discovery; had TCA 10-7-504(h) been intended to apply to
discovery as well as public records requests, legislature would have said so
expressly. West v. Schofield, 9/29/14, MS, McBrayer, 15 pages.
http://www.tncourts.gov/sites/default/files/weststephen.opn_.pdf

GOVERNMENT: In election contest case between declared winner of District 4
school board race in Shelby County (Woods) and unsuccessful candidate
(Whalum), Whalum continues to have standing to pursue election contest; because
term candidate is defined as someone seeking office in future, question of
whether individual is candidate for office appears to be determined prior to
election, with doctrine of standing focused on suits birth, rather than suits
death; because at time of suits birth, no new district lines had been implemented
district lines were redrawn after Whalum filed election contest, and, as result,
Whalum no longer resides in newly adopted boundaries of District 4 Whalum
was eligible candidate for school board at time of election in question; trial
courts decision invalidating election (and ordering new election) is reversed when
result of election was neither affected nor rendered incurably uncertain as result of
186 allegedly illegal votes even taking into account these allegedly illegal votes,
Woods remains clear victor. Whalum v. Shelby County Election Commission,
9/30/14, WS, Stafford, partial dissent by Clement, 37 pages.
http://www.tncourts.gov/sites/default/files/whalumekopn.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In second degree murder case, although trial judge
erred in abbreviating voir dire and jury selection, which prevented defendant
from invoking her last two peremptory challenges, error was harmless; given that
defendant was given opportunity to challenge all prospective jurors in jury box,
but declined to do so, choosing instead to make invalid strike to one of
prospective jurors not sitting in jury box, and fact that she has presented no
evidence that jurors that decided her case were not competent, unbiased, and
impartial, trial courts failure to allow defendant to exercise her last two
peremptory challenges did not constitute reversible error; while more appropriate
course would have been for trial court to continue jury selection to next earliest
opportunity, trial court was dealing with rapidly changing, extremely difficult set
of circumstances it had begun sleeting and snowing outside, and trial judge
wanted to complete jury selection that evening because she was afraid that she
would not have been able to get jurors back in court next day because of
worsening weather and hence, trial judges actions were reasonable under
circumstances. State v. Taylor, 9/30/14, Jackson, McMullen, 81 pages.
http://www.tncourts.gov/sites/default/files/taylorpamelaopn.pdf


ATTORNEY GENERAL OPINION

GOVERNMENT: Beginning on 10/1/14, notary public is required to keep
record of his or her acts in well-bound book regardless of whether notary public
receives fee or compensation for his or her services; so long as information
required to be kept by TCA 8-21-1201 is available for public inspection and other
conditions are met, such information may be maintained in electronic form.
Attorney General Opinion 14-89, 9/29/14, 3 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-89.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