TAM-BYTES

November 24, 2014

Vol. 17, No. 47
2014 TAM CLE CALENDAR

Webinar
Where Family Law and International Issues Collide: Relocation and Child
Abduction Issues, 60-minute webinar presented by Rebecca McKelvey
Castaneda, with Stites & Harbison in Nashville, on Wednesday, February 25,
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

IN THIS WEEKS TAM-Bytes

Supreme Court grants petitioner new sentencing hearing in capital case
when defense counsels failure to present psychological mitigation
evidence at sentencing hearing deprived petitioner of his right to effective
assistance of counsel;
Workers Comp Panel, in case involving pre-July 1, 2014 injury, holds
trial court erred by awarding permanent partial disability benefits in excess
of 1.5 times employees medical impairment rating when employee offered
no reason for reduction in her work hours whether change was temporary
or permanent, whether other employees were similarly affected, or whether
there was any relationship between work injury and reduction in hours
just one month prior to trial;
Workers Comp Appeals Board affirms trial judges finding that employer
successfully established defense of willful failure or refusal to use safety
device in case in which employee, who fell from tree, failed to tie-in to
climbing rope before engaging in cutting tree;
Court of Appeals, in case in which plaintiff fell while descending steps,
which allegedly had improperly seated nails fastening top of steps, affirms
summary judgment in favor of defendants, owners of cabin, and rental
company, which managed and maintained cabin;
Court of Appeals, in parental rights termination case, holds that fathers
20-minute phone calls with children every other week constituted more
than mere token visitation when father lived in Indiana, children lived in
Tennessee, father had no drivers license and was of modest financial

means, and no evidence was presented that anyone was willing to provide
father with transportation assistance or was willing to drive him to
Tennessee;
Court of Appeals holds prenuptial agreement invalid when husband
surprised wife, who was three months pregnant, with agreement three days
before scheduled wedding (and two days before Christmas), wife had no
legitimate opportunity to seek independent legal advice, wife was under
duress at time she signed agreement, and agreement was unfair to wife;
Court of Criminal Appeals holds trial judge properly found 911 recordings
of statements made to 911 operator to be nontestimonial, and therefore, did
not violate defendants right to confront witnesses;
Court of Criminal Appeals rules trial judge erred, following its revocation
of defendants judicial diversion, in holding that defendants original plea
agreement can survive the revocation and in sentencing defendant in
accordance with original plea agreement;
Court of Workers Comp Claims, in denying claim of employee, drivethrough bank teller who tripped over her feet and fell as she turned to face
teller line, rules injury was idiopathic; and
Court of Workers Comp Claims rules employee, who reported that he felt
pain in his back and hip area when he stepped out of his truck, did not
prove that his alleged injuries arose primarily out of employment.

SUPREME COURT
CRIMINAL PROCEDURE: In case in which petitioner was convicted of
premeditated first degree murder and aggravated kidnapping and sentenced to
death, because trial counsel failed to expose sentencing jury to any of highly
relevant psychological mitigation evidence they had at their fingertips
petitioners lifelong history of psychosis, his frontal lobe dysfunction, and fact
that his mental functioning was, in some respects, equivalent to that of 9-year-old
or 10-year-old child trial counsels representation fell short of prevailing
professional norms and prejudiced petitioners defense; although evidence of
petitioners profound personality disorder might not have made him any more
likable to the jury, evidence could very well have helped jury understand how
petitioner could have committed such horrendous acts and could have
humanized petitioner and helped jury accurately gauge his moral culpability.
Davidson v. State, 11/17/14, Nashville, Koch, partial dissent by Wade, 30 pages.
http://www.tncourts.gov/sites/default/files/davidsonjropn.pdf
http://www.tncourts.gov/sites/default/files/jerry_ray_davidson_v_state-separate_opn_11-17-14.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of first

degree premeditated murder and sentenced to death, although trial counsel spent
minimal amount of time preparing for trial and failed to interview number of
witnesses before trial, instead choosing to talk with them at breaks during trial,
petitioner failed to prove by clear and convincing evidence reasonable probability
that, but for deficient performance of his trial counsel, result of his trial would
have been different; evidence did not preponderate against finding by postconviction court that witnesses who testified regarding petitioners conduct
before and after murder were not credible. Nesbit v. State, 11/14/14, Jackson,
Lee, unanimous, 20 pages.
http://www.tncourts.gov/sites/default/files/nesbitclarence.opn_.pdf

CIVIL PROCEDURE: Contract program set forth in Section 7 of Supreme

Court Rule 13, which authorizes Administrative Office of Courts to enter into
contracts with attorneys, law firms, or associations of attorneys to provide legal
services to indigent persons for fixed fee, is changed from pilot project to
permanent program, and programs scope is expanded to authorize contracts for
indigent representation in several other types of cases. In re Supreme Court Rule
13, Section 7, 11/19/14, Nashville, 3 pages.
WORKERS COMP PANEL
WORKERS COMPENSATION: In case in which employee fell from ladder
on 1/8/09 while taking down Christmas decorations in office, and trial court
found that employees neck injury was not compensable, but found that
employees wrist and shoulder injuries were compensable, there was no basis for
concluding that wrist injury caused any permanent disability when there was no
testimony from any medical witness that wrist injury affected employees ability
to perform any tasks or limited her activities in any way; trial court erred by
awarding permanent partial disability benefits in excess of 1.5 times employees
medical impairment rating when employee offered no testimony or other
evidence as to reason for reduction in her work hours whether change was
temporary or permanent, whether other employees were similarly affected, or
whether there was any relationship between employees work injury and
reduction in hours; in absence of such evidence, and in light of employees threeyear history of performing same job for 40 hours per week after her return to
work, her shortened work schedule just one month prior to trial does not provide
adequate basis for exceeding 1.5 times cap; trial court did not err in failing to
award temporary disability benefits when trial court found that neck injury was
not compensable and when employee made no effort to apportion her absences

among specific injuries. Moore v. Knox County Government, 11/12/14,

Knoxville, Blackwood, 8 pages.
http://www.tncourts.gov/sites/default/files/wc-mooreteresaopn.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Evidence did not preponderate against trial
judges findings that employer successfully established defense of willful failure
or refusal to use safety device in case in which employee, who fell from tree,
failed to tie-in to climbing rope before engaging in cutting tree; explanation that
foreman was rushing employee does not qualify as plausible explanation for
employees noncompliance with employers 100% tie-in rule. Gonzales v. ABC
Professional Tree Service, 11/10/14, Hensley, 25 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1024&context=utk_workerscomp

COURT OF APPEALS
TORTS: In case in which plaintiff fell while descending steps to enter cabin,
family later discovered that one of steps allegedly flipped or rocked forward
when stepped on in certain spot, due to missing or improperly seated nails, and
plaintiff filed suit against owners of cabin and rental company, which managed
and maintained cabin, trial court properly granted defendants summary judgment;
there was no material evidence from which trier of fact could conclude that
defendants should have, in exercise of reasonable care, discovered condition
when plaintiff produced no evidence to demonstrate how long condition had
existed or what caused it, no prior invitees, including plaintiffs family, had noted
problem, managing companys housekeeping staff had regularly and recently
cleaned cabin, discovering no problem with condition of stairs, rental companys
maintenance staff had regularly inspected cabin and noted no issues, and plaintiff
herself had once traversed stairs without difficulty. Hannah v. Sherwood Forest
Rentals LLC, 11/17/14, ES, Frierson, 10 pages.
http://www.tncourts.gov/sites/default/files/hannah.pdf

COMMERCIAL LAW: In suit by plaintiff, shareholder in closely-held family

business, pursuant to TCA 48-26-102(b) to inspect companys accounting
records, evidence did not preponderate against trial courts finding that plaintiff
acted in good faith in making his request for inspection of records; trial court
awarded plaintiff fees and expenses he paid to forensic accountant he hired to
inspect records, but plaintiff is only entitled to be paid for cost of accountants
testimony concerning whether records requested were accounting records;
forensic accounting conducted by accountant, for which plaintiff sought

reimbursement, was designed to determine how company was being run and
whether there was mismanagement, but TCA 48-26-104(c) does not contemplate
shareholder being paid for such costs because they were not incurred to obtain
order to inspect records requested; case is remanded for trial court to determine
how much of cost of forensic accounting is attributable to accountants testimony
concerning whether records requested by accountant qualified as accounting
records; trial court did not abuse discretion in allowing defendant 20% discount
regarding attorneys fee award when reason given by trial court was duplication
of effort on part of plaintiffs attorneys. Daugherty v. Doyle, 11/17/14, MS,
Bennett, 22 pages.
http://www.tncourts.gov/sites/default/files/daughertyr.opn_.pdf

COMMERCIAL LAW: When siblings agreed to dissolve corporation that

operated family business and sell its assets, receiver was appointed, three
defendant siblings placed highest bid for assets, trial court approved sale to three
siblings, prior to closing of sale, three siblings formed new corporation and
assigned their right to purchase assets to newly formed corporation, receiver
conveyed assets directly to new corporation, which began conducting business
just as family business had done in past, one of plaintiff siblings formed another
corporation and went into direct competition with corporation that had purchased
assets of family business, three individual siblings filed counterclaim against
competing sibling, alleging intentional interference with business relations,
breach of fiduciary duty, and that they lost benefit of their bargain, three
individual siblings also sought injunctive relief against competing sibling, and
neither of new corporations was made party to proceedings, all of claims asserted
by three individual siblings attempt to recover for harm suffered by corporate
entities, and hence, they lack standing to assert these claims. In re Estate of
McRedmond, 11/14/14, WS at Nashville, Gibson, 29 pages.
http://www.tncourts.gov/sites/default/files/mcredmondedwardstephenopn.pdf

FAMILY LAW: Evidence did not support termination of fathers parental rights
on ground of abandonment by willful failure to visit when father, who lived in
Indiana, did not visit his children, who lived in Cookeville, during relevant fourmonth period, but father, who was of modest financial means, did not have
drivers license, presented no evidence that anyone was willing to provide him
with transportation assistance or was willing to drive him seven hours one-way to
Cookeville for visitation, and father visited with children every other week by
speaking with them for at least 20 minutes by telephone; under circumstances,
trial court erred by holding that fathers 20-minute phone calls with children
every other week during relevant four-month period prior to filing of termination
petition constituted mere token visitation. In re Caira D., 11/25/14, MS,
Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/inrecairad_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts conclusion
that parties prenuptial agreement was invalid and unenforceable when husband
failed to prove that he provided full and fair disclosure of his assets to wife
before agreement was executed; given fact that husband surprised wife with his
presentation of agreement three days before scheduled wedding (and two days
before Christmas), leaving wife without opportunity to seek independent legal
advice, agreement itself was unfair to wife, and wife, who was three months
pregnant and unemployed at time, was under duress when draft was presented to
her, wife did not freely enter into agreement as required by TCA 36-3-501.
Ellis v. Ellis, 11/25/14, ES, Susano, 17 pages.
http://www.tncourts.gov/sites/default/files/ellis20141031.pdf

FAMILY LAW: In case in which wife was awarded, as lump sum alimony,
25% of remaining balance from sale of marital residence, after payment of costs
of sale and joint indebtedness of parties, and reimbursement to husband of onehalf of his mortgage payments from date of trial courts order through date of sale
of property, because trial court erred in imputing income to both parties without
finding of willful underemployment or unemployment, alimony award is vacated,
and case is remanded to trial court for reconsideration. Horine v. Horine,
11/24/14, WS at Knoxville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/horinebopn_1.pdf

CIVIL PROCEDURE: In construction contract dispute in which trial court

granted summary judgment in favor of defendant general contractor as to all of
plaintiff subcontractors tort claims, parties proceeded to trial on remaining issues,
and judgment was awarded in favor of subcontractor, trial court applied improper
standard in granting summary judgment when trial courts order granting
summary judgment indicated that, based upon evidence in record, plaintiff could
not establish essential elements of its claim, but nothing in trial courts order
indicated that defendant had conclusively established that plaintiff would be
unable to establish these claims at trial; under Hannan v. Alltel Publishing Co.,
270 SW3d 1 (Tenn. 2008), fact that plaintiff submits no evidence, at summary
judgment stage, to prove all essential elements of his or her claims is simply
insufficient to sustain grant of summary judgment; instead, moving party must
conclusively establish that plaintiff will be unable to prove his or her claim at trial.
Commercial Painting Co. v. Weitz Co., 11/18/14, WS, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/commercialpaintingopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In aggravated kidnapping case, trial judge properly found 911
recordings of statements made to 911 operator to be nontestimonial and hence,

there was no violation of defendants right to confront witnesses when callers

observed defendant assault victim and forcibly remove her and drive away in
truck, callers, acting with haste, dialed 911 to report possible abduction and
described events as they were happening and before danger had been neutralized,
911 dispatcher elicited information to enable law enforcement to locate assailant
and to ensure victims safety, and callers were responding to victims call for
help against bona fide physical threat; fact that 911 recordings were used in later
prosecution did not make them testimonial; trial court properly admitted 911
recordings under excited utterance exception to hearsay rule when each of
declarants spontaneously reported observing assault and possible abduction of
victim and described startling event as it was occurring, while still under stress of
event. State v. Duff, 11/24/14, Knoxville, McMullen, 15 pages.
http://www.tncourts.gov/sites/default/files/duffgregoryopn.pdf

CRIMINAL SENTENCING: In case in which trial court revoked defendants

judicial diversion and sentenced him to 10 years of supervised probation, trial
judge erred, following its revocation of defendants judicial diversion, in holding
that defendants original plea agreement can survive the revocation and in
sentencing defendant in accordance with original plea agreement; to allow state
and defendant to enter into sentencing agreement prior to termination of
diversion contradicts purpose of diversion statute, which is deferral of sentence
until future date; because trial court impermissibly relied upon plea agreement in
manner inconsistent with purposes of sentencing act, trial court erred in ordering
defendant to serve sentence contemplated by initial plea agreement rather than
proceeding through sentencing process following revocation of defendants
judicial diversion; case is remanded to trial court for sentencing hearing, at which
defendant should be sentenced for kidnapping, Class C felony, within appropriate
range. State v. Voto, 11/24/14, Knoxville, Wedemeyer, 8 pages.
http://www.tncourts.gov/sites/default/files/votojopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

EMPLOYMENT: In suit alleging violation of Section 207 of Fair Labor
Standards Act, district court properly granted City of Memphis summary
judgment on complaint of firefighters employed by Memphis Fire Department
asserting overtime pay for paramedic training time. Misewicz v. City of
Memphis, 11/14/14, Moore, 16 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0279p-06.pdf

EMPLOYMENT: When plaintiffs, all at one point employees of Terminix

International Company, L.P., or Terminix International, Inc., brought action
against ServiceMaster for violations of Fair Labor Standards Act, alleging that

ServiceMaster had policy of not compensating technicians for all hours worked
and for overtime, and seeking to represent class of similarly-situated employees,
arbitrator determined that plaintiffs could proceed collectively, and
ServiceMaster settled with individual plaintiffs, district court erred in awarding
plaintiffs counsel full amount of attorney fees and costs requested; case is
remanded for further development of record and reconsideration of award for
expenses of computer-based research; because district court is required to assess
the prevailing market rate in the relevant community, law clerk-rate issue is
remanded for additional consideration; block-billing can be sufficient so long as
description of work performed is adequate, but issue is remanded so that district
court can assess objection in light of its reconsideration of other issues. Smith v.
Service Master Corp., 11/14/14, White, 16 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0858n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: In case in which employee, drive-through bank
teller, fell as she turned to face teller line, injury was idiopathic when employee
testified that she did not trip on her chair or rug, did not identify any hazard specific
to her employment that caused her to fall, and testified that she tripped over her
feet. Whaley v. First Tennessee Bank National, 9/16/14, Knott, 5 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1018&context=utk_workerscomp

WORKERS COMPENSATION: In case in which employee, long-haul truck

driver, reported that he felt pain in his back and hip when he stepped down out of
his truck, employee did not prove that he suffered compensable injury; employee
submitted insufficient evidence to show that his alleged injuries arose primarily
out of employment when his testimony was vague in describing how his alleged
injury occurred, he reported different history at medical center that he started
hurting earlier and became worse when he got out of his truck, and panel doctor
testified that employees hip condition was not result of acute injury. Poindexter
v. Estes Express Lines, 10/9/14, Umsted, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1017&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 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