TAM-BYTES

December 8, 2014
Vol. 17, No. 49
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 holds legislature has afforded statutory right to trial by
jury, as described in TCA 21-1-103, on claims under Tennessee Human
Rights Act filed in chancery court;
Supreme Court holds TCA 24-7-123, which provides method for videorecorded statements of child sex abuse victim made to forensic
interviewers to be used at trial to establish acts of sexual contact
performed with or on child by another, does not unconstitutionally
infringe upon powers of judiciary and is valid legislative exception to
general rule against admission of hearsay evidence;
Court of Appeals affirms trial courts additur of $10,000 in rear-end
collision case in which jury awarded plaintiff $3,577 for her medical
expenses but declined to award plaintiffs any damages claimed for other
injuries, including any pain and suffering, loss of enjoyment of life, or
loss of consortium;
Court of Appeals, in suit against insurer for breach of homeowners
insurance policy to recover for damages sustained to plaintiffs home as
result of tornado, affirms jurys finding that insurers conduct in handling
claim violated Tennessee Consumer Protection Act and trial courts
finding that defendants action was willful and knowing and doubling
award of damages;
Court of Appeals says once wife received award of husbands one-half
interest in marital residence as alimony in solido, she was no longer
economically disadvantaged relative to husband, who was 59 years old at

time of divorce, and there was no valid economic reason to award her
additional long-term spousal support;
Court of Criminal Appeals says that to extent TCA 40-11-141(b) permits
trial court to hold defendant without bail pending trial, statute violates
constitutional guarantee of right to bail under Tenn. Const. Art. I, Sec. 15;
Court of Criminal Appeals holds trial court erred in revoking defendants
probation when states theory relied totally on defendants polygraph test
results and his refusal to take second polygraph examination to justify
revocation of probation; and
Court of Workers Comp Claims applies statutory scheme, effective July
1, 2014, setting out procedure after authorized treating physician makes
referral to specialist.

SUPREME COURT
EMPLOYMENT: Applying Cruse v. City of Columbia, 922 SW2d 492 (Tenn.
1996), Tennessee Human Rights Act (THRA) is independent and specific
statute, which removed governmental immunity and which controls adjudication
of THRA claims; provisions of THRA clearly establish legislative intent to
afford right to trial by jury to persons who bring THRA claims against
governmental entities in chancery court; Young v. Davis, 34 TAM 51-2
(Tenn.App. 2009), is overruled to extent it may be interpreted as holding that
Governmental Tort Liability Act governs all statutory claims against
governmental entities. Sneed v. City of Red Bank, 12/2/14, Knoxville, Clark,
unanimous, 18 pages.
http://www.tncourts.gov/sites/default/files/sneedl_opn.pdf

EVIDENCE: Legislature acted within its constitutional limits by enacting TCA

24-7-123, which provides method for video-recorded statements of child sex
abuse victim made to forensic interviewers to be used at trial to establish act[s]
of sexual contact performed with or on the child by another, as specific and
limited exception to general rule against admission of hearsay evidence. State v.
McCoy, 12/1/14, Nashville, Wade, unanimous, 18 pages.
http://www.tncourts.gov/sites/default/files/mccoybarryopn.pdf

COURT OF APPEALS
TORTS: 120-day tolling provision of Health Care Liability Act (HCLA)
extends statute of limitation in case under Governmental Tort Liability Act;
Harper v. Bradley County, 39 TAM 45-3 (Tenn.App. 2014), provides well-

reasoned construction of effect of 2011 amendments to HCLA; in health care

liability action by plaintiff, in her capacity as administratrix ad litem of estate of
her deceased brother, against Bordeaux Long Term Care facility (Bordeaux),
where decedent resided prior to his death, Metropolitan Hospital Authority,
which managed and operated Bordeaux, Metropolitan Government of Nashville
(Metro), which owned Bordeaux, and Dr. Vollmer, primary care physician for
decedent while he was resident at Bordeaux, trial court erred in granting TRCP
12.02(6) motion to dismiss Metro when although it was not alleged that Metro
had direct control over employees or services provided at Bordeaux, complaint
asserts vast array of indirect control by Metro that could have direct
consequences upon services provided at Bordeaux. Banks v. Bordeaux Long
Term Care, 12/4/14, MS, Clement, 11 pages.
http://www.tba.org/sites/default/files/bowersv_120514.pdf

DAMAGES: In case in which plaintiff sought to recover damages stemming

from rear-end collision, and jury awarded plaintiff $3,577 for her medical
expenses but declined to award plaintiffs any damages claimed for other injuries,
including any pain and suffering, loss of enjoyment of life, or loss of
consortium, trial court did not err by suggesting additur of $10,000 to jury
verdict; defendants argue that trial court was not entitled to increase jurys
verdict by any amount because jury determined that plaintiff was not entitled to
non-economic damages, but Tennessee courts do not analyze award adjustments
by type of damages awarded but, rather, consider whether overall verdict was
destroyed by additur or remittitur; trial courts adjustment, which accounts for
non-economic damages, is not so disproportionate to jury verdict that Tennessee
law would deem it to have totally destroyed it; evidence did not preponderate
against trial courts suggested additur when it was plausible for trial court to
conclude that plaintiff would continue to deal with annoyance and aggravation
related to stiffness and pain in her neck and when although plaintiff had preexisting condition, she never suffered any symptoms or required any treatment
prior to accident. Bonner v. Deyo, 12/5/14, WS, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/bonneropn.pdf

EMPLOYMENT: Trial court properly granted City of Etowah summary

judgment in retaliatory discharge action filed by former police officer who alleged
that she was fired because of her failure to meet quota for citations; plaintiff failed
to establish genuine issue of material fact on issue of whether she refused to
participate in illegal activity; undisputed proof established valid and legitimate
reasons for plaintiffs termination her poor attitude and demeanor at work for
one thing, and fact that she was not writing many tickets which was interpreted
by her supervisor as not doing her job, as another. Bige v. City of Etowah, 12/1/14,
ES, Susano, 21 pages.
http://www.tncourts.gov/sites/default/files/bige_v_city_of_etowah_2014-11-21_1_0.pdf

INSURANCE: In suit by plaintiffs against insurer for breach of their

homeowners insurance policy to recover for damages sustained to their home as
result of tornado in which jury found that defendants actions violated Tennessee
Consumer Protection Act (TCPA) and awarded damages to plaintiffs and trial
court doubled jurys award, trial court did not err in overruling motion for
judgment NOV when defendant presented $56,789 check to plaintiffs in take it
or leave it fashion, that amount was based on claims adjustors assessment of
damages, in which he acknowledged he missed some stuff and represented
that he would make [it] right, and language on check that endorsement was
full release of claim was contrary to testimony of defendants representative that
additional monies could be paid to plaintiffs; trial court did not err in finding
defendants conduct willful and knowing and doubling award of damages; award
of $94,848 in attorney fees, 55.5% of judgment, was supported by evidence;
damages awarded in TCPA case is not measure of reasonableness of amount of
fee to be awarded for successful prosecution of action. Brooks v. Tennessee
Famers Mutual Insurance Co., 11/26/14, MS, Dinkins, 20 pages.
http://www.tncourts.gov/sites/default/files/brookse.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of

mothers parental rights to her two children on ground of abandonment due to
willful failure to support or visit when childrens grandmother/guardian failed to
prove that mother had capacity either to visit with or to support her children
grandmother presented insufficient evidence concerning mothers income during
relevant time period, so it cannot be determined whether mother had financial
ability to visit or support children during four-month period preceding filing of
termination petition. In re Mackenzie N., 11/26/14, MS, McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/inremackenzien.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts award to wife of

four months of transitional alimony when wife, who has multiple sclerosis, was
clearly in need of additional support, and husband has ability to pay long-term
alimony without undue financial hardship; given that husband is capable of
earning $62,000 per year, wife is entitled to $150 per week as alimony in futuro,
payable until wifes death or remarriage. Berkshire v. Berkshire, 12/1/14, ES,
Susano, 14 pages.
http://www.tncourts.gov/sites/default/files/berkshire_v_berkshire_2014-11-12.pdf

FAMILY LAW: In case in which wife was awarded husbands one-half interest
in parties marital residence (worth minimum of $200,000) as alimony in solido,
as well as $200 per month as alimony in futuro until age 65, once wife received
award of husbands one-half interest in marital residence as alimony in solido,
she was no longer economically disadvantaged relative to husband, and there

was no valid economic reason to award her additional spousal support; if

husband were younger man husband was 59 years old at time of divorce with
many more working years before him, his greater earning capacity over those
many more working years might well make wife economically disadvantaged
compared to husband even after award of alimony in solido, but husband would
need to work another seven years until age 66 and earn $60,000 more than wife
per year, after taxes, just to equalize difference with wife after she received his
half of marital residence, and given husbands age, it is illogical result and
contrary to evidence to expect husband to continue his work pace for another 30
or 20 or even 10 years; trial courts award to wife of $200 per month until she
reaches age 65 is reversed, irrespective of whether one classifies it as alimony in
futuro or transitional alimony; given that wife is no longer economically
disadvantaged compared to husband, trial courts award to wife of $6,000 in
attorney fees is reversed. Calloway v. Calloway, 11/26/14, ES, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/callowayscjopn.pdf

GOVERNMENT: Statement plaintiff, former employee of Middle Tennessee

Research and Education Center of University of Tennessee, made to female
employee on university property If I could get inside of you, it would take a
bulldozer to get me out justified termination of plaintiffs employment;
statement by plaintiff qualifies as sexual harassment of another employee on
university property during university activities in violation of subsection (b) of
universitys Code of Conduct; plaintiffs statement also qualifies as act of moral
turpitude and intolerable behavior that falls within definition of gross
misconduct in universitys Disciplinary Action policy. Fralix v. University of
Tennessee, 12/2/14, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/fralixj.l.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: There is no need for specific rule barring plain
error review in every suppression or evidentiary issue, especially in light of fact
that, in actuality, defendants will likely be barred from relief because of inability
to put forth evidence of violation of rule or adequate record for plain error
review. State v. Jones, 11/26/14, Jackson, Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/jonesbrandonopn.pdf

CRIMINAL PROCEDURE: Trial courts reliance upon TCA 40-11-141(b),

which provides that if, after defendant is released on bond, defendant is charged
with offense committed during his or her release, then court may revoke and
terminate defendants bond and order defendant held without bail pending trial
or without release pending trial, violates constitutional guarantee to pretrial bail

by permitting trial court to hold defendant without bail pending trial; to extent
TCA 40-11-141(b) permits trial court to hold defendant without bail pending
trial, statute violate constitutional guarantee of right to bail under Tenn. Const.
Art. I, Sec. 15; case is remanded to trial court for further proceedings concerning
additional bail, and during hearing, trial court must address factors outlined in
TCA 40-11-118(b) as to additional conditions or bail that may be required to
reasonably assure the appearance of the defendant while at the same time
protecting the safety of the public. State v. Burgins, 12/3/14, Knoxville,
Thomas, 4 pages.
http://www.tncourts.gov/sites/default/files/burginslatickiatashayopn.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to four

counts of sexual exploitation of minor and was sentenced to effective term of
eight years to be served on supervised probation, approximately five months
later, probation violation warrant was filed, and after determining that
defendants refusal to take polygraph examination second time constituted
violation of conditions of probation, trial court revoked defendants probation
and ordered him placed back on supervised probation after service of 60 days in
jail, trial court erroneously allowed testimony of defendants failure to pass
polygraph test; because states theory relied totally on defendants polygraph
test results and his refusal to take second polygraph examination to justify
revocation of probation and because it was plain error to admit any of polygraph
examination testimony, judgment of trial court is reversed; case is remanded for
new probation violation hearing in which any proof about polygraph
examination, including defendants willingness or unwillingness to take
polygraph examination, is inadmissible. State v. Cagle, 12/5/14, Nashville,
Woodall, 9 pages.
http://www.tncourts.gov/sites/default/files/caglerandallwayneopn.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employee sustained injury that arose
primarily out of and in course and scope of employment when employee,
assembly line worker, testified about specific event when she suddenly felt sharp
pain in her left arm and shoulder while performing assigned duties; when
physicians assistant (PA) made general referral to orthopedic treatment, case
manager asked PA to specifically refer employee to particular doctor, and
employer did not accept referral or provide employee panel within three business
days, employee was entitled to panel of orthopedic physicians from which to
select provider; employee did not justify seeking unauthorized medical
treatment, nor did she offer any proof as to amount of or reasonableness of

charges for such service; employee is entitled to past and future temporary
partial disability benefits because although employer made reasonable
accommodations for employees restrictions, employer wrongfully terminated
employee. Chatman v. Topre America, 11/12/14, Switzer, 15 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1019&context=utk_workerscomp

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