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TAM-BYTES

April 6, 2015
Vol. 18, No. 14
2015 TAM CLE CALENDAR

Webinars
Jury Selection in Tennessee: Starting the Trial on the Right Path,
60-minute audio conference by Bryan Moseley, with Moseley &
Moseley in Murfreesboro, on Wednesday, April 22, at 2 p.m. (Central), 3
p.m. (Eastern). *Earn 1 hour of GENERAL credit
Identity Theft: How to Use the FCRA, FDCPA, and TCPA to Help
Your Client and Yourself, 60-minute webinar presented by John
Watts, with Watts & Herring in Birmingham, on Thursday, April 23, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Health-Related Boards in Tennessee: Defending Professionals in
Disciplinary Proceedings, 60-minute webinar presented by Garrett
Asher, with Parker, Lawrence, Cantrell & Smith in Nashville, on
Wednesday, April 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Appellate Practice Basics: Top 10 Ways to Lose Your
Appeal, 60-minute webinar presented by Elizabeth Sitgreaves, with
Dodson, Parker, Behm & Capparella in Nashville, on Thursday, May 7, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Enhancing Your Trial Skills: Applying Rules of Discovery and
Evidence, 60-minute webinar presented by Stephen Gillman, with
Priest, Harber, Floyd & Coffey in Knoxville, on Wednesday, May 13, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

E-Discovery in Tennessee: Where We Are and Where We Are


Going, 60-minute webinar presented by Russell Taber, with Riley,
Warnock & Jacobson in Nashville, on Wednesday, May 27, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Follow the Money: Finding Applicable Insurance and Collectible
Assets in Auto Injury Cases in Tennessee, 60-minute webinar presented
by Burke Keaty, with the Law Offices of John Day in Brentwood, on
Wednesday, May 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee


Attorneys
*Now in its 8th year!*
WHEN: Friday, May 8
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day; Daniel Clayton, Kinnard, Clayton &
Beveridge; C. J. Gideon, Gideon, Cooper & Essary; Ben Harrison,
Cornelius & Collins; Marty Phillips, Rainey, Kizer, Reviere & Bell; and
Tom Pinckney, Of Counsel, Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of
good faith requirements; practical considerations for handling a health care
liability claim on behalf of an injured patient; techniques for deposing an
expert; physician credentialing and other hospital liability issues; trial tips
and tactics from the defense perspective; deposition strategies; the use of
technology in a health care liability case; review of recent health care
liability appellate court cases; a panel discussion of hot topics in health
care liability actions; and ethical issues in handling medical records,
including HIPAA compliance.

Tennessee Business Law Conference


*New for 2015!*
WHEN: Friday, May 15
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Alexander J. Davie, Riggs Davie, Nashville; Keith C.
Dennen, Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton,
Franklin; J. Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga;
Mark Ison, Sherrard & Roe, Nashville; Thomas K. Potter, III, Burr &
Forman, Nashville; Andrew J. Pulliam, Wyatt, Tarrant & Combs,
Nashville; and Richard Spore, Bass, Berry & Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to consider,
parent/subsidiary liability, reverse piercing, and effect of Hobby Lobby;
liability and fiduciary duties of corporate officers and directors to the
corporation and the shareholders; a step-by-step guide to a business
divorce from fact-finding to the end game; recent changes to the
Tennessee Nonprofit Corporation Act optional changes to governing
documents; key considerations in selecting a business entity for example,
using series LLCs and new hybrid alternatives; drafting LLC operating
agreements key provisions to include; forming a professional service
business including management services and friendly PC arrangements
involving nonprofessionals; and ethics for attorneys in business disputes
including understanding the scope of your representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes


Supreme Court grants defendant new trial in aggravated sexual
battery case when trial courts failure to follow relevant jury
selection procedures in TRCrP 24(d) resulted in prejudice to judicial
process;
Supreme Court declines to require Tennessee attorneys to report
annually extent of their pro bono work;
Workers Comp Appeals Board says mere notice of alleged
workplace accident, in and of itself, does not trigger employers duty

to provide medical benefits in every case, without regard to


particular circumstances presented;
In case of first impression, Court of Appeals holds that trial court
should first reduce jurys award of non-economic damages by
percentage of comparative fault, and then, if adjusted award is still
above statutory cap, court should reduce award further to comport
with cap;
Court of Appeals holds claim for loss of consortium is subject to
pre-suit notice provision of Health Care Liability Act and that notice
provided by injured spouse does not satisfy pre-suit notice provision
as to loss of consortium claim;
In affirming dismissal with prejudice of health care liability action
for failure to file certificate of good faith, Court of Appeals says fact
plaintiffs filed something else that provided other, or more,
information is immaterial;
Court of Appeals holds surviving spouse does not have to have
abandoned decedent for period of two years to have waived right to
institute action to collect proceeds under wrongful death statute;
Court of Appeals, in reversing trial courts judgment reducing
husbands alimony, says husbands retirement constituted substantial
and material change in circumstances, but husband failed to prove
that change in circumstances significantly diminished his financial
ability to pay alimony or wifes need for such support;
Court of Appeals says, in case in which parties were divorced in
Tennessee, and mother and parties child moved to Nevada,
although Tennessee no longer has jurisdiction to modify childs
custody arrangements under Uniform Child Custody Jurisdiction and
Enforcement Act, Tennessee court maintains jurisdiction to enforce
terms of unmodified parenting plan;
Court of Appeals rules discovery rule may be invoked in claim
based on vicarious liability under doctrine of respondeat superior;
and
Court of Criminal Appeals reverses murder conviction when trial
judge erred by prohibiting defendant from cross-examining state
witnesses about defendants statement after shooting that he did not
intend to shoot victim, by allowing states expert to testify about
trigger pull of double-barrel shotguns, and by allowing jury to
handle shotgun that was not murder weapon.

SUPREME COURT
CRIMINAL LAW: Evidence was sufficient to convict defendant of
aggravated sexual battery when, even if trustworthiness test applies, record
contains substantial independent evidence corroborating defendants
extrajudicial statement and tending to show that statement is trustworthy;
because trial courts failure to follow relevant jury selection procedures in
TRCrP 24(d) resulted in prejudice to judicial process, defendants
conviction is vacated, and case is remanded for new trial; by commingling
all 23 prospective jurors from two voir dire sessions and by randomly
selecting 10 jurors to excuse from service, trial court essentially removed
from parties any ability to exercise peremptory challenges intelligently.
State v. Frausto, 4/1/15, Knoxville, Clark, unanimous, 19 pages.
http://www.tncourts.gov/sites/default/files/fraustod_opn.pdf

PROFESSION OF LAW: Supreme Court declines Access to Justice


Commissions request to require Tennessee attorneys to report annually
extent of their pro bono work; Rule 9 is amended to request that in
reporting extent of attorneys pro bono legal services and activities,
attorney state whether or not he or she made any voluntary financial
contributions to organization that provides legal services to persons of
limited means pursuant to RPC 6.1(c), but attorney need not disclose
amount of any such contributions. In re Amendment of Supreme Court
Rule 9, Sections 10.10 & 10.2, 3/31/15, Nashville, 7 pages.
http://www.tba.org/sites/default/files/tsc_probono_donation_033115.pdf

WORKERS COMP APPEALS PANEL


WORKERS COMPENSATION: Evidence did not preponderate against
trial courts finding that physical injury occurred and that permanent
impairment resulted from injury when employee, who had no previous
problems with his lower back, had immediate pain after attempting to lift
object at work, diagnostic testing revealed possible anatomical source for
employees symptoms in form of annular tear or abnormality, trial court
accepted 7% impairment suggested by treating physician and trial court
observed employees physical discomfort at trial; evidence did not
preponderate against trial courts finding of 10% psychiatric impairment
rating when both psychiatrists noted that employee displayed some

tendencies consistent with depression, including blunt affect, anger, and


pessimism, and when trial court accepted impairment rating of psychiatrist
who examined employee at request of employees attorney; trial court did
not err in finding that employee did not have meaningful return to work,
thereby permitting award of permanent partial disability benefits in excess
of 1.5 times medical impairment rating, when employee was unable to
complete full shift due to pain from his low back injury and never returned
to work after meeting at which he was told that he could not come back to
work until he was able to work his entire eight-hour shift. Knight v. Publix
Supermarkets Inc., 3/31/15, Nashville, Clark, 15 pages.
http://www.tncourts.gov/sites/default/files/knight-publix_opnjo.pdf

WORKERS COMPENSATION: When employee, housekeeper, injured


her right shoulder on 6/15/05 and filed workers comp claim, employee was
released to full duty work with no work restrictions on 12/26/06, employer
voluntarily allowed employee to return to work in position which was less
strenuous than her prior position as housekeeper, employee settled workers
comp claim on 5/11/09 while retaining her right of reconsideration, new
supervisor, hired in 8/11, determined that employer was short-staffed and
asked employee to resume her prior housekeeping duties, employee refused
and was terminated on 8/29/11, and employee filed complaint on 2/28/12
asserting her right to reconsideration of settlement, trial court did not err in
finding that employee had not committed willful misconduct and by finding
that she was entitled to reconsideration of prior workers comp settlement;
when, despite having no medical restrictions, employee repeatedly told
employer and doctor that she did not believe she could perform her prior
housekeeping duties because of excessive pain it would cause in her right
shoulder due to her prior injury, evidence did not preponderate against trial
courts conclusion that she could not have performed housekeeping duties
asked of her; employees refusal to undertake these housekeeping duties
was reasonable, directly related to her prior work-related injury, and did not
constitute misconduct. Samadi v. Hilton Hotels Corp., # 3/31/15,
Nashville, Ash, 9 pages.
http://www.tncourts.gov/sites/default/files/samadihilton.opnjo_.pdf

WORKERS COMP APPEALS BOARD


WORKERS COMPENSATION: Mere notice of alleged workplace
accident, in and of itself, does not trigger employers duty to provide
medical benefits in every case, without regard to particular circumstances
presented; if employer chooses to deny claim following its initial

investigation, employee must come forward with sufficient evidence from


which trial court can determine that employee likely will prove
compensable injury by accident at hearing on merits in accordance with
TCA 50-6-239(d)(1); conversely, employer who elects to deny claim runs
risk that it will be held responsible for medical benefits obtained from
medical provider of employees choice and/or that it may be subject to
penalties for failure to provide panel of physicians and/or benefits in timely
manner; employee came forward with sufficient evidence entitling her to
panel of physicians when employee testified, without contradiction, that
she felt symptoms in her low back while lifting boxes at work on 10/3/14,
employee visited emergency room twice over following two days
complaining of low back or right shoulder symptoms, employers
representative admitted that employees job duties included lifting boxes
and admitted that employee reported back and left shoulder pain from
repetitive lifting of heavy boxes on 10/7/14, and on-site supervisor stated
that employee attempted to give him medical paperwork on 10/7/14 and
that he instructed employee to give paperwork directly to her employer.
McCord v. Advantage Human Resourcing, 3/27/15, Conner, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1071&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1061&context=utk_workerscomp

APPEAL & ERROR: When decision of court of workers compensation


claims was filed on 2/27/15 and notice of appeal was filed on 3/16/15,
outside time limit of seven business days provided for in TCA 50-6217(a)(1)(A), appeal was untimely and must be dismissed; timely filing of
notice of appeal is required to properly perfect appeal of trial courts
decision. Bates v. Command Center Inc., 4/2/15, Davidson, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1075&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1060&context=utk_workerscomp

COURT OF APPEALS
TORTS: As matter of law, in personal injury cases, trial court should first
reduce jurys award of non-economic damages by percentage of
comparative fault, and then, if adjusted award is still above statutory cap,
court should reduce award further to comport with cap; in case in which
Mr. Sadowski, 90-year-old driver, and Mrs. Sadowski, 82-year-old
passenger, were injured when their vehicle and vehicle driven by defendant
collided, Mrs. Sadowski died two months later from her injuries, jury
awarded Mr. Sadowski $1,050,000 in non-economic damages and
$325,746 in economic damages, jury assessed 15% fault to Mr. Sadowski,
trial court reduced these amounts by 15% and then applied $750,000

statutory cap to non-economic damages, jury awarded Mrs. Sadowskis


estate $875,000 in non-economic damages and $473,378 in economic
damages, which amounts were reduced by 15% and applicable statutory
cap, to $750,700 and $402,371 respectively, and jury awarded plaintiffs
$450,000 on loss of consortium claim, which was reduced by 15%, there
was ample material evidence to support both non-economic and economic
damages to Mr. Sadowski as well as jurys verdict for loss of enjoyment of
life and loss of consortium with Mrs. Sadowski; in personal injury action,
reasonableness of charge for medical or hospital services can be shown by
testimony of member of non-medical staff in this case, social worker at
assisted living facility. Monypeny v. Kheiv, 4/1/15, WS at Memphis,
Armstrong, 49 pages.
http://www.tncourts.gov/sites/default/files/monypenybrooksopn.pdf

TORTS: When husband underwent total proctectomy and iloanal pouch


procedure in 4/09, husband continued to experience difficulties, plaintiff
alleged that during 12/21/11 procedure to remove pouch, surgical error
resulted in large hole being burned into his urethra, pre-suit notice of
husbands claims against defendant hospital was provided on 12/12/12,
husbands complaint was filed on 4/18/13, wife joined as co-plaintiff,
asserting, among other things, claim for loss of consortium, defendant
filed motion to dismiss wifes claim because wife had not provided presuit notice as potential claimant, and trial court dismissed wifes claim
for failure to give pre-suit notice and as barred by statute of limitation,
wifes claim for loss of consortium is subject to pre-suit notice provision,
and notice provided by husband did not satisfy pre-suit notice provision
as to wifes claim; pre-suit notice is mandatory for each person asserting
a potential claim for health care liability, and only strict compliance
satisfies this requirement; trial court did not abuse discretion in declining
to find extraordinary cause justifying wifes non-compliance with presuit notice provisions; dismissal without prejudice is appropriate remedy
for failure to comply with pre-suit notice provisions; when construed
liberally in favor of plaintiff, as required in reviewing dismissal under
TRCP 12.02(6), time wife experienced loss of husbands consortium
cannot be pinpointed as it could have occurred as early as 12/25/11, when
husband returned to hospital with his symptoms, but it may have
occurred in 7/12, when husband demonstrated significant erectile
dysfunction, or even later; trial court erred in dismissing wifes claim
with prejudice on motion to dismiss. Igou v. Vanderbilt University,
3/27/15, MS, McBrayer, 16 pages.
http://www.tncourts.gov/sites/default/files/igouj.opn_.pdf

TORTS: Trial court properly dismissed with prejudice health care liability
action based on plaintiffs failure to file certificate of good faith; plaintiffs
argued that because they filed something from their expert rather than
certificate of good faith of plaintiffs or plaintiffs counsel, they overcomplied by providing more information than statute requires and,
because of this, their lack of compliance with mandatory language in TCA
29-26-122 should be excused, but filing of certificate of good faith is
mandatory; as plaintiffs failed to file certificate of good faith, fact they
filed something else that provided other, or more, information is
immaterial. Dennis v. Smith, 3/31/15, ES, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/dennislopn.pdf

TORTS: When plaintiffs provided statutorily required 60-day pre-suit


notice on 1/8/09 prior to filing medical malpractice case on 4/8/09, during
pendency of action, legislature enacted statutory changes to Medical
Malpractice Act, setting forth new requirements for actions filed on or after
7/1/09, plaintiffs voluntarily dismissed suit on 9/8/09 before ever having
filed certificate of good faith, plaintiffs filed second complaint on 9/8/10
with attached certificate of good faith but failed to provide new 60-day presuit notice, plaintiff instead attached copy of previously filed 60-day presuit notice to second suit, defendant sought to dismiss second suit alleging
that plaintiffs had failed to comply with notice requirements by neglecting
to file new pre-suit notice, trial court granted motion to dismiss, Court of
Appeals reversed, and Supreme Court granted permission to appeal and
remanded case for reconsideration in light of Foster v. Chiles, 40 TAM 5-1
(Tenn. 2015), dismissal of action is affirmed; in light of Foster, plaintiffs
were required to provide defendants with notice under TCA 29-26121(a)(1) before filing second suit. Potter v. Perrigan, 3/26/15, ES,
McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/potteronremand.pdf

TORTS: Under TCA 20-5-106(c)(1), surviving spouse does not have to


have abandoned decedent for period of two years to have waived right to
institute action to collect proceeds under wrongful death statute; two-year
period applies only to willful withdrawal; if two years have passed since
alleged abandonment, children or next of kin have advantage of rebuttable
presumption in proving that surviving spouse abandoned deceased spouse.
Baugh v. United Parcel Service Inc., 3/31/15, MS, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/baughl.opn_.pdf

TORTS: When firefighter (plaintiff) with Nashville Fire Department who


was injured while he and paramedic were moving patient in wheelchair,
plaintiff filed suit against Metropolitan Government of Nashville and

Davidson County under Governmental Tort Liability Act, trial court granted
summary judgment on issue of liability upon findings that established
procedure existed for lifting of patients in wheelchair, that paramedic
violated established procedure, that violation caused plaintiffs injuries, and
that plaintiff was not comparatively at fault, and trial court awarded plaintiff
$300,000 in damages, trial court properly found that paramedic was 100% at
fault for injuries sustained by plaintiff, and hence, as paramedics employer,
Metro is liable for injuries sustained by plaintiff. Bloomfield v. Metropolitan
Government of Nashville, 3/26/15, MS, Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/bloomfieldk_opn.pdf

TORTS: In suit under Governmental Tort Liability Act to recover for


injuries sustained in fall suffered by plaintiff while she was walking across
bridge from parking lot to fairgrounds operated by City of Jackson (City),
conditions of bridge exposed nails, rotting or decayed wood, and broken
runner were readily apparent and clearly supported determination that
City was on constructive notice; evidence supported holding that City owed
duty to plaintiff, as patron of flea market, when Citys employees were
instructed to inspect bridge when crossing it and to report conditions in
need of repair, inspections were sporadic, photos showing condition of
bridge two days after plaintiffs fall were evidence of nature of harm which
could occur to persons who had to cross bridge in going from parking lot to
flea market, that someone could fall on bridge, due to exposed nails and
decaying woods, was reasonably foreseeable, and there was no proof that
City took any measures either to address condition, to warn of its existence,
or to direct flea market patrons not to cross bridge; although City argued
that plaintiff was at least 50% at fault because she had superior knowledge
of bridges condition, that there was alternate course to take to get from
parking area to flea market, that plaintiff realized risk but proceeded in spite
of same, and that she was inattentive as she walked across bridge, trial court
appropriately considered plaintiffs action and assigned 40% of fault to her.
Kee v. City of Jackson, 3/30/15, WS, Dinkins, 11 pages.
http://www.tncourts.gov/sites/default/files/keesarahopn.pdf

COMMERCIAL LAW: When law firm and attorneys (appellees)


represented appellant in suit arising from automobile accident, appellees
orally agreed to lower contingency fee from one-third to one-tenth in
consideration of appellants agreement to settle her case against tort
defendants for $52,000, appellant agreed to accept this offer and signed
settlement agreement at conclusion of mediation, appellant thereafter
allegedly refused to sign releases drafted by tort defendants, trial court,
upon tort defendants motion, enforced settlement agreement reached by

parties at mediation, and appellees asserted that appellants refusal to sign


releases drafted by tort defendants constitutes breach of modified fee
agreement and sought to enforce attorneys fee lien for full one-third of
recovery, trial court erred in granting appellees motion to enforce lien for
full amount; appellants obligation under contract with appellees was to
settle case, and appellant did so; any obligation to release tort defendants
was due to tort defendants under settlement agreement and was not owed
to appellees, and any failure of appellant to execute release could have
only been enforced by tort defendants. Bunch v. Jones, 3/30/15, WS,
Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/bunchjaniceopn.pdf

CONTRACTS: In case involving lawsuit brought for damage to property,


in which parties, during hiatus after three days of trial, settled case and
announced essential terms of settlement to court in open court, and after
parties failed to agree to written settlement document, plaintiffs asked trial
court to enforce settlement agreement, trial court properly found that
settlement agreement formed binding contract and was, therefore,
enforceable agreement was quite detailed, not only covering boundaries
and construction of retaining wall, but also addressing matters not raised in
litigation, such as security light, electronic pad to operate gate, and spraying
of herbicides; because agreement resolves property line dispute, statute of
frauds is inapplicable. Harvey v. Turner, 3/26/15, MS, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/diehln.opn_.pdf

PROPERTY: Restrictive covenants can lose their force when they fail to
serve useful purpose and may be rendered unenforceable if radical changes
in character of entire neighborhood completely defeat purpose of covenant;
when determining whether restrictive covenant continues to serve any
useful purpose, courts must be concerned primarily with continuing value
of restrictive covenant to entire neighborhood, not hardship to parties
attempting to avoid restrictive covenant. Harris v. Aldmon, 3/30/15, ES,
Susano, Swiney not participating, 30 pages.
http://www.tncourts.gov/sites/default/files/harris_v._aldmon.pdf

ESTATES & TRUSTS: When, in months preceding her death, decedent


changed her bank accounts, originally titled solely in her name, to become
joint accounts with defendant son with right of survivorship, and plaintiffs,
two other children of decedent, filed suit asserting that defendant exerted
undue influence over decedent in these transactions, and jury rendered
verdict for plaintiffs for $284,800, material evidence supported jurys
finding that confidential relationship existed when there was evidence that
decedent suffered from some degree of mental confusion in months before

her death, clinical psychologist examined MRI conducted on decedents


brain and concluded that MRI reflected brain atrophy, which could affect
decedents ability to make decisions, and psychologist opined that persons
with conditions similar to decedent could be vulnerable to influence by
someone expressing willingness to serve as caregiver; defendant could not
show fairness of transactions by clear and convincing evidence when
decedents will evinced clear and unambiguous intent by her that her
children share equally in her estate; material evidence supported amount of
jurys verdict when defendant attempted to demonstrate that all sums he
withdrew from decedents accounts were used to construct decedents new
house, but he only expended $370,000 of $615,000 he withdrew, and
jurys verdict of $284,800 reflects approximate difference between
$615,000 removed from accounts and appraised value of new home.
McMillin v. McMillin, 3/31/15, ES, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/mcmillinfinal.pdf

FAMILY LAW: When daughter filed petition to be named conservator of


mother, evidence supported trial courts finding that such appointment was
against mothers wishes and best interest; trial court did not abuse discretion
in ordering daughter to pay fees and expenses of mothers appointed
guardian ad litem; amendment to TCA 34-1-114 in 2013 provides trial court
greater measure of discretion in assessing guardian ad litem fees. In re
Conservatorship of McQuinn, 3/30/15, ES, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/in_re_mcquinn.pdf

FAMILY LAW: In divorce case, trial court did not abuse discretion in
attributing $500 per month to fathers income for his amateur bowling
earnings when father spent substantial amount of time and money on
bowling and referred to bowling as second job, and thus, father was
involved in income-producing endeavor, not merely hobby. Hayes v.
Hayes, 3/26/15, WS at Nashville, Stafford, 17 pages.
http://www.tncourts.gov/sites/default/files/hayesjeopn.pdf

FAMILY LAW: In case in which trial court granted husbands petition to


reduce his alimony obligation due to his retirement trial court found that
husbands income had decreased to approximately one-third of his
previous income level, so trial court reduced alimony payments to roughly
one-third of husbands previous obligation, i.e., from $2,870 per month to
$1,035 per month trial court applied incorrect legal standard when
considering husbands petition to modify and also erred in its factual
findings; trial court erred in relying solely on husbands decrease in
income as basis for modifying his alimony obligation trial court did not
make any findings regarding husbands expenses, wifes income, wifes

expenses, or any other factors relevant to setting alimony obligation;


husbands retirement constituted substantial and material change in
circumstances, but husband failed to prove that change in circumstances
significantly diminished his financial ability to pay alimony or wifes need
for such support although husband experienced decrease in income due
to his retirement, he was still receiving approximately $8,166 per month
from social security and retirement benefits, and his retirement funds were
valued at around $1.2 million; previous spousal support order setting
husbands monthly obligation at $2,870 per month is reinstated. Malkin v.
Malkin, 3/26/15, WS at Memphis, Gibson, 13 pages.
http://www.tncourts.gov/sites/default/files/malkinkarenabramsopn.pdf

FAMILY LAW: In case in which parties were divorced in Tennessee, and


mother and parties child subsequently moved to Nevada, although
Tennessee no longer has jurisdiction to modify childs custody
arrangements under Uniform Child Custody Jurisdiction and Enforcement
Act, given fact that Nevada is now childs home state, Tennessee court
maintains jurisdiction to enforce terms of unmodified parenting plan,
especially in light of fact that father continues to reside in Tennessee;
Tennessee court erred in dismissing mothers petition for contempt based
on fathers alleged failure to comply with portions of parenting plan;
Tennessee court retains jurisdiction over enforcement of parenting plan
even if alleged contemptuous conduct is unrelated to custody of child or
child support. Blake v. Blake, 3/30/15, MS, Bennett, 8 pages.
http://www.tncourts.gov/sites/default/files/blakeb1.opn_.pdf

CIVIL PROCEDURE: Discovery rule may be invoked in claim based on


vicarious liability under doctrine of respondeat superior; when vehicle
operated by Smith and vehicle operated by Hauck collided, plaintiffs
Smith, Mortimer (passenger in Smiths vehicle), and Mortimers husband
filed suit on 6/7/13 against Hauck, Hauck answered on 8/26/13, plaintiffs
filed first set of interrogatories and request for production of documents on
Hauck on 8/30/13, plaintiffs interrogatories sought information regarding
Haucks purpose for traveling at time of collision and information
regarding his employer, after Haucks responses were approximately six
weeks past due, plaintiffs filed motion to compel on 11/18/13, Hauck
responded to interrogatories on 12/4/13 and stated that he was working for
St. Jude Medical S.C., Inc. (St. Jude Medical) when collision occurred,
Hauck also stated that, at time of accident, he was traveling to St. Thomas
Hospital to participate in surgery as part of employment with St. Jude
Medical, plaintiffs filed motion to amend complaint on 12/4/13 to add St.
Jude Medical as defendant, trial court granted motion, and plaintiff filed

amended complaint on 12/20/13 alleging that St. Jude Medical was liable
under doctrine of respondeat superior, summary judgment based on statute
of limitation in favor of St. Jude Medical is reversed; in light of limited
record, it cannot be said that only inference to be drawn from undisputed
facts is that plaintiffs had inquiry notice that Hauck was acting within
course and scope of his employment with St. Jude Medical before they
received his delayed responses to their first set of interrogatories on
12/4/13. Smith v. Hauck, 3/25/15, WS at Nashville, Goldin, 15 pages.
http://www.tncourts.gov/sites/default/files/smithsharon.opn_.pdf

CIVIL PROCEDURE: In suit alleging that defendant bank breached its


contractual obligations to plaintiffs by failing to provide long-term
financing toward building of plaintiffs home as promised, trial court erred
in granting summary judgment based on three-year statute of limitation for
injury to property or interest in property; applying two-part test as required
by Tennessee Supreme Court in Benz-Elliott v. Barrett Enterprises LP, 40
TAM 4-2 (Tenn. 2014), six-year statute of limitation for breach of contract
applied when legal basis of plaintiffs claim was breach of contract and
when damages sought by plaintiffs originate in alleged breach of
agreement to provide permanent financing, which, although ultimately
resulting in loss of property, does not represent inherently injury to
property or interest in property but instead are financial only. Sanders v.
First Tennessee Bank N.A., 3/26/15, ES, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/sandershopn.pdf

CIVIL PROCEDURE: When complaint was filed on 6/3/11 and process


was issued by clerk of court, service of process was attempted on
defendant, resident of California, through Tennessee Secretary of State,
service was unsuccessful, defendant filed limited appearance asserting that
he had not been properly served with process, plaintiff posited that
defendant had been properly served via certified mail on 11/14/11, and
plaintiff filed copy of envelope in which complaint and summons were
allegedly mailed to defendant at his California residence, U.S. Postal
Service receipt showing date and costs of mailing, and return receipt
bearing signature of unknown individual who accepted mailing as agent,
trial court properly ruled that service of process was never successfully
completed upon defendant in accordance with TRCP 3 and 4 when
plaintiff did not file original summons with proper endorsement and did
not file required affidavit setting forth mailers compliance with TRCP
4.03. Amresco Independence Funding LLC v. Renegade Mountain Golf
Club LLC, 3/31/15, ES, Frierson, 6 pages.
http://www.tncourts.gov/sites/default/files/amrescoopnfinal.pdf

CIVIL PROCEDURE: In case in which parties were involved in divorce


action in Decatur County Chancery Court, and wife filed motion for
recusal, contending that because she campaigned heavily for
chancellors opponent in 8/14 election, chancellor should recuse himself
from pending divorce action, wifes support of chancellors opponent in
smallest county of five-county judicial election, without more, would not
cause person of ordinary prudence to jump to conclusion that chancellor
would be biased against her and therefore does not require recusal. Cotham
v. Cotham, 3/30/15, WS, Gibson, 5 pages.
http://www.tncourts.gov/sites/default/files/cothamjudypopn.pdf

GOVERNMENT: When petitioner, drivers license examiner, was injured


on job, she was absent from work for nearly 13 months, for some of those
months, she was on various forms of approved leave, petitioner was
eventually terminated for job abandonment, she exhausted Department of
Safetys grievance process, both Commissioner of Safety and Civil Service
Commission (Commission) affirmed termination, and trial court affirmed
Commissions decision, there was not substantial and material evidence to
support conclusion that petitioner abandoned her job under TCA 8-30326(c); in addition to mischaracterizing evidence, Commission also failed
to consider manner in which Department described petitioners
employment status in its communication to her and Departments lack of
response to her extended leave requests, 8/10 letter indicated that petitioner
was on leave without pay status, 9/10 letter indicated that she was in a
without pay status, letters did not indicate if leave without pay and
without pay were forms of approved leave, nor did they indicate when
those classifications would expire, neither letter indicated that petitioner
would be terminated if she did not receive extended leave, but Department
never informed her that it was denying her request for extended leave prior
to termination, even for insufficient documentation or improper
submission. Malone v. Tennessee Department of Safety, 3/30/15, MS,
McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/malonet.opn_.pdf

COURT OF CRIMINAL APPEALS


EVIDENCE: In first degree murder case, trial judge erred by prohibiting
defendant from cross-examining state witnesses about defendants
statement after shooting that he did not intend to shoot victim, by allowing
states expert to testify about trigger pull of double-barrel shotguns, and by
allowing jury to handle shotgun that was not murder weapon; defendants

murder conviction is reversed, and case is remanded for new trial. State v.
Williams, 3/27/15, Jackson, Ogle, 27 pages.
http://www.tncourts.gov/sites/default/files/williamsericopn.pdf

CRIMINAL LAW: Defendants convictions for both aggravated robbery


and employing firearm during commission of dangerous felony did not
violate double jeopardy when elements of two crimes are different; trial
courts failure to merge defendants aggravated robbery and aggravated
assault convictions does not constitute plain error. State v. Taylor, 3/31/15,
Nashville, Page, partial dissent by Montgomery, 21 pages.
http://www.tncourts.gov/sites/default/files/taylormariodopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of rape


when victims description of feeling that defendant was trying to pry her
open alone supports finding of penetration. State v. Hodge, 3/26/15,
Knoxville, Witt, 8 pages.
http://www.tncourts.gov/sites/default/files/hodgemaxwellmonroeopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of


failure to appear when state failed to prove that defendant knew that he had
court date scheduled for 10/13/09, at which he failed to appear
appearance bond, signed by defendant, instructed that his court date was
9/11/09, and state introduced no testimony regarding trial courts usual
procedures for notifying defendant of his or her court date from which jury
might infer that such procedures were followed with regard to defendant;
evidence was sufficient to convict defendant of retaliation for past action
when defendant threatened subpoenaed witness twice following his court
appearance and specifically referred to witnesss presence in courtroom
although witness was subpoenaed to testify against defendant and appeared
in court, he was never actually called to testify; person may be witness
within purview of TCA 39-16-510 even though he or she never actually
testified at official proceeding. State v. Whitaker, 3/27/15, Knoxville,
Thomas, 10 pages.
http://www.tncourts.gov/sites/default/files/whitakereddiejoeopn_0.pdf

CRIMINAL PROCEDURE: Defendant is not entitled to plain error relief


with regard to his argument that trial court violated his constitutional right
to confrontation by allowing doctor who did not perform victims autopsy
to testify regarding autopsy and by admitting autopsy report into evidence
when defendant did not object to admission of autopsy report or challenge
any of findings contained in report, he failed to object to doctors
testimony, primary issue at trial was whether defendant was perpetrator,
and autopsy report revealed that victims death was attributable to blunt

force trauma combined with sharp force injuries but did not reveal any
forensic evidence tying particular suspect to murder. State v. Washington,
3/31/15, Nashville, Ogle, concurrence by Woodall, 18 pages.
http://www.tncourts.gov/sites/default/files/washingtonjamesrevised.pdf

SIXTH CIRCUIT COURT OF APPEALS


CRIMINAL PROCEDURE: District court properly denied defendants
motion to suppress drugs discovered by police following traffic stop and
dog sniff when officer had reasonable, articulable suspicion of criminal
activity that justified extending stop for few minutes to conduct dog sniff
using drug-detection dog that was already on scene based on nervousness
exhibited by driver and defendant (passenger), inconsistent and
implausible travel plans offered by defendant and driver, and
odd/suspicious vehicle rental arrangement. United States v. Winters,
3/31/15, Boggs, 22 pages, Pub.
http://www.tncourts.gov/sites/default/files/washingtonjamesrevised.pdf

COURT OF WORKERS COMPENSATION CLAIMS


WORKERS COMPENSATION: When Brunner injured himself while
making delivery for Blue Sky Couriers and sought medical benefit and/or
temporary disability, evidence preponderates in favor of finding that, for
workers compensation purposes, Brunner was independent contractor, not
employee, in light of applicable statutory factors, existence of independent
contractor Agreement, and relatively small amount of control exercised
by Blue Sky Brunner was working as Courier pursuant to independent
contractor Agreement with Blue Sky, Brunner furnished his own vehicle
and equipment, chose whether to accept deliveries given by Blue Sky
dispatcher, was free to hire his own helpers and to accept work from other
entities, Brunner was paid percentage (60%) of delivery fee paid by
customer, and Blue Sky required that Brunner wear hat and shirt
identifying him as Courier and required Brunner to furnish and use
specific communication equipment so that he could communicate with
Blue Sky dispatcher, and Brunner was required to purchase or lease
communication equipment and uniform; uniform for identification of
Courier and equipment for communication with Blue Sky were basic
necessities which assisted Brunner in performing his work but were very
minimal exercises of control by Blue Sky. Brunner v. Blue Sky Courters,
12/26/14, Umsted, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1038&context=utk_workerscomp

WORKERS COMPENSATION: When Parsons, owner/operator of pool


building business, went to customers home where he was building pool
around 10 a.m. on 7/21/14, he saw his subcontractor (Rando) and Vaughn
and learned that Rando had brought Vaughn to site, Parsons stayed at
jobsite for around four hours, Parsons testified that he never spoke to
Vaughn and never saw Vaughn working, Vaughn testified that Parsons
walked up to him, shook his hand, and offered him job, Vaughn claims that
he accepted, spent day working, and injured his back while moving rocks,
and Vaughn filed petition for benefit determination and named Parsons as
defendant, Vaughn failed to prove that he was Parsons employee when
testimony of Parsons was more believable than testimony of Vaughn and
when only documentary evidence that tended to support Vaughns claim
that he was Parsons employee was check for $100 that Parsons made out
to Billy, but fact that Parsons failed to include Vaughns last name on
check discounts probative value of check in establishing employment
relationship and reason Parsons wrote check to Vaughn was disputed
Parsons testified that he wrote check to Vaughn as loan from Rando to
Vaughn. Vaughn v. Parsons, 12/22/14, Baker, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1036&context=utk_workerscomp

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