TAM-BYTES

May 11, 2015

Vol. 18, No. 19
2015 TAM CLE CALENDAR

Webinars
E-Discovery in Tennessee: Where We Are and Where We Are Going, 60minute 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
Probate Litigation in Tennessee: Hot Topics and Recent
Developments, 60-minute webinar presented by Rebecca Blair, with The
Blair Law Firm in Brentwood, on Thursday, May 28, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Change of Custody in Tennessee: Parental Relocation and Other PostDivorce Issues, 60-minute audio conference presented by Kevin Shepherd,
Maryville attorney, on Thursday, June 4, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Affordable Care Act: Impact on Damages in Tennessee, 60-minute
webinar presented by Steven Fuller, Brentwood attorney, on Tuesday,
June 9, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Commercial and Residential Leases: Key Provisions,
Tenant Default, and More, 60-minute webinar presented by Joshua
Kahane, Memphis attorney, on Wednesday, June 9, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Qualifying for TennCare and VA Benefits: Use of Irrevocable Trusts,

60-minute webinar presented by Alex M. Taylor, with Kennerley,
Montgomery & Finley in Knoxville, on Wednesday, June 24, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Life Care Plans: How to Defend a Claim for Future Medical
Expenses, 60-minute webinar presented by John Alexander, with
Rainey, Kizer, Reviere & Bell in Jackson, on Thursday, June 25, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
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 rules police captain was discharged solely in
retaliation for protected conduct in suit under Tennessee Public
Protection Act in which police chief discharged police captain after
captain complained to mayor that police chief had him fix ticket
for chiefs stepson;
Supreme Court holds, in issue of first impression, that kidnapping
charge accompanied by aggravated burglary charge does not, standing
alone, warrant White instruction;
Court of Appeals reverses summary judgment in favor of railroad in
case in which plaintiffs, whose home and storage building were
damaged during May 2010 flood in Memphis, alleged that railroad
had not properly constructed culvert which adjoined and fed into ditch
or had allowed culvert to become obstructed, which caused blockage
in flow of water in drainage ditch;
Court of Appeals says neither TRCP 3 nor TRCP 4.03 requires
plaintiff to file return of proof of service within 90 days of issuance of
summons in order to rely on original commencement of action to toll
statute of limitation;
Court of Criminal Appeals, in case in which defendant was convicted
of several sexual offenses all stemming from illicit Facebook chats
and emails between himself and victim, says trial judge did not abuse
discretion in admitting chats and emailed photograph of penis from
Hotmail account; and

 General Assembly permits obligor and obligee to compromise and

settle child support arrearage balance owed directly to oblige, with
court approval.

SUPREME COURT
EMPLOYMENT: When chief of police of City of Burns (City) had plaintiff,
captain of police department, fix ticket for chiefs stepson, plaintiff
complained to mayor, police chief discharged plaintiff, plaintiff filed suit under
Tennessee Public Protection Act (TPPA), and City claimed that it terminated
plaintiffs employment because he violated chain of command by reporting
ticket fixing to mayor and also because plaintiff undermined chiefs authority
with other officers in police department, Citys assertion that it discharged
plaintiff for going outside of chain of command amounts to admission that it
retaliated against plaintiff for refusing to remain silent about illegal activities,
conduct that is protected under TPPA; evidence preponderated in favor of
finding that second reason proffered by City for discharge is pretext for
retaliation; Citys admission that it fired plaintiff for engaging in protected
conduct constitutes direct evidence of retaliatory motive, and there was
circumstantial evidence that retaliation was sole reason behind discharge.
Williams v. City of Burns, 5/4/15, Nashville, Kirby, unanimous, 29 pages.
http://www.tncourts.gov/sites/default/files/williamslarry.opn_.pdf

CRIMINAL PROCEDURE: In case in which defendants were convicted of

aggravated robbery, aggravated burglary, especially aggravated kidnapping,
and possession of firearm with intent to go armed during commission of
dangerous felony, and trial judge dismissed firearms conviction and set aside
guilty verdicts for especially aggravated kidnapping and aggravated burglary,
finding that those conditions, in conjunction with aggravated robbery
conviction, violated due process, although trial judge erred by not instructing
jury pursuant to State v. White, 362 SW3d 599 (Tenn. 2012), based on
especially aggravated kidnapping and aggravated robbery charges, error was
harmless; kidnapping charge accompanied by aggravated burglary charge
does not, standing alone, warrant White jury instruction. State v. Alston,
5/5/15, Knoxville, Lee, concurrence by Bivins, 19 pages.
http://www.tncourts.gov/sites/default/files/alstonlarry.opn_.pdf

WORKERS COMP APPEALS PANEL

WORKERS COMPENSATION: In case in which employee injured his
knee while attempting to repair piece of heavy machinery owned by his

employer, evidence did not preponderate against trial courts finding of

anatomical impairment of 7% or award of 28% using multiplier of four, for
vocational disability related to employees left leg when trial court relied
upon testimony of treating physician that separate impairment rating for
surgical scar was not warranted; evidence did not preponderate against trial
courts finding that employee did not have meaningful return to work when
employee testified that he was no longer able to kneel, squat, or crawl,
which were required by his former job responsibilities, employers human
resources director stated unequivocally that approval of plant physician was
required before any employee would be permitted to return to work from
injury and that plant physician had never approved employee to return to
work, and plant physicians skepticism concerning employees ability to
return to work after being released by treating physician resulted in referral
to doctor who placed employee under additional six months of restrictions.
Gamble v. Abitibibowater Inc., 4/30/15, Knoxville, Wade, 12 pages.
http://www.tncourts.gov/sites/default/files/gamblealfredopnjud.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Dispute Certification Notice (DCN) did
not include whether panel of physicians given to employee was legally
sufficient, and preconditions to raising issues other than those identified on
DCN were not met; at expedited hearing, parties stipulated, and trial court
accepted as stipulation, that panel provided to employee was proper and
legally compliant, and hence, legal sufficiency of panel provided to
employee was not ripe for adjudication at expedited hearing; trial courts
order for new panel of physicians is vacated. Dorsey v. Amazon.com Inc.,
5/14/15, Conner, 16 pages.
http://trace.tennessee.edu/utk_workerscomp/83/

COURT OF APPEALS
TORTS: When plaintiffs, whose property was damaged by flood in 5/10,
filed suit against City of Memphis (City), alleging that drainage ditch was
not properly maintained and, as consequence, their property flooded after
rainfall, plaintiffs amended complaint to add claim that City created
temporary nuisance by failing to maintain drainage ditch and requested
injunction requiring City to abate nuisance, and, on basis of information
received in discovery from City, complaint was amended to join railroad as
defendant and allege that railroad had not properly constructed culvert which
adjoined and fed into ditch or had allowed culvert to become obstructed,

which caused blockage in flow of water in drainage ditch and resulted in

property damage, trial court erred in granting railroad summary judgment;
whether railroad complied with federal regulation (49 CFR 213.33), which
mandates that Each drainage or other water carrying facility under or
immediately adjacent to the roadbed shall be maintained and kept free of
obstruction, to accommodate expected water flow for the area concerned, is
question of fact that must be settled before court can determine whether
plaintiffs claim is preempted; testimony of civil engineer, plaintiff, and his
neighbors created genuine issue of material fact as to whether, and extent to
which, culvert was obstructed such that water could not pass through,
thereby causing flood. Chambers v. Illinois Central Railroad Co., 5/5/15,
WS, Dinkins, 15 pages.
http://www.tncourts.gov/sites/default/files/chambersopn.pdf

CIVIL PROCEDURE: Trial court erred in finding that plaintiff was

precluded from relying on original commencement of action to toll statute of
limitation because of her failure to return summons to clerk within 90 days;
no portion of TRCP 4.03 mandates filing return of proof of service within 90
days, and plaintiffs delay of 106 days in filing her return is not fatal to her
action. Fisher v. Ankton, 5/5/15, WS at Memphis, Stafford, 13 pages.
http://www.tncourts.gov/sites/default/files/fisherhopn.pdf

CIVIL PROCEDURE: Trial courts order denying recusal motion is

affirmed in medical negligence case in which defendants primary basis for
recusal case was argument that because trial judge showed emotion after
watching video showing plaintiff at various points during his life, he would
be partial to plaintiffs in acting as thirteenth juror; defendant failed to meet
its burden to show type of pervasive bias that would warrant trial judges
recusal. Williams v. HealthSouth Rehabilitation Hospital North, 5/8/15,
WS, Armstrong, 11 pages.
http://www.tncourts.gov/sites/default/files/williamsopn_1.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In murder case, trial committed reversible error in
defendants case by refusing to sever defendants trial from that of codefendant when only significant evidence against defendant was Smiths
eyewitness account, and had defendant been tried separately, states case
would have rested mainly on jurys having to resolve Smiths testimony with
evidence of defendants alibi due to joint trial, jury heard co-defendants
claim during opening statements that defendant was not only present during
shooting but decided on his own accord to shoot victims; trial judge erred by
allowing state to display assault rifle not used in crimes when, while

demonstrative evidence was highly relevant in states case against codefendant, it was not relevant to defendants case; defendants conviction is
reversed, case is remanded for new trial. State v. Swift, 5/5/15, Jackson,
Ogle, partial dissent by Easter, 30 pages.
http://www.tncourts.gov/sites/default/files/swiftchristopherhoustonmarquiousopn.pdf

EVIDENCE: In case in which defendant was convicted of several sexual

offenses, all stemming from illicit Facebook chats and emails between himself
and victim, trial judge did not abuse discretion in admitting chats and emailed
photograph of penis from Hotmail account when there was more than
sufficient circumstantial evidence to authenticate Facebook chats and emails
in question defendant admitted that Facebook account used to send chats
belonged to him and defendant admitted that Hotmail account belonged to
him, that password to account was not remembered, requiring someone to
enter password each time they logged into account, and that Hotmail email
address was also associated with defendants Facebook account, listed on his
resume, and tied to his T-Mobile Blackberry; to extent that defendant argued
that state was required to affirmatively prove that defendant was author of
message, such challenge goes to weight of evidence, not its admissibility.
State v. Burns, 5/5/15, Nashville, Holloway, 22 pages.
http://www.tncourts.gov/sites/default/files/burnsvermainem.pdf

CRIMINAL PROCEDURE: In attempted murder case, trial judge did not

err in denying defendants motion to suppress evidence obtained as result of
defendants arrest; there is no Tennessee authority for proposition that
holding in State v. Little, 560 SW2d 403 (Tenn. 1978), that false statement
made with intent to deceive the Court, whether material or immaterial to the
issue of probable cause, or false statement essential to the establishment of
probable cause, recklessly made would render affidavit in support of search
warrant invalid, applies with equal force to arrest warrants; detectives own
visual identification of defendant, along with other facts, supported finding
of probable cause and justified issuance of arrest warrant; trial judge erred in
denying defendants motion to suppress evidence obtained as result of
search warrant when affidavit did not provide sufficient probable cause for
issuance of search warrant while co-defendants incriminating statement
may have matched details of attempted robbery, such facts were not
included in affidavit, and affidavit did not specify any of information
provided by co-defendant which was corroborated by police but erroneous
admission of evidence obtained pursuant to invalid search warrant did not
affect verdict, and hence, error was harmless; although trial judge abused
discretion in limiting defendants cross-examination of detective about
alleged incident of dishonesty related to his resignation from police

department, error was harmless when there was little probative value to
evidence. State v. Pierce, 5/5/15, Nashville, McMullen, 32 pages.
http://www.tncourts.gov/sites/default/files/piercenarrellopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of nine

counts of especially aggravated sexual exploitation of minor when, although
using camera to secretly capture images of minors presents factually close
case, defendant secretly recorded his daughter in her bathroom and victim and
her friend in daughters bedroom, waist-level camera was hidden in basket on
bathroom sink, all of videos depict victims either fully or partially nude, videos
depict victims breasts, buttocks, and pubic areas during private moments
where they believed that they were alone, defendant was responsible for
recording each video, often setting up camera seconds before victims entered
bathroom or bedroom, position of camera indicates that defendant selected
locations to film to best capture victims nudity, defendant retrieved camera
almost immediately after victims left bathroom and bedroom, and defendant
covertly stored videos on his phone, saving them under pictures folder; trial
judge properly instructed jury that visual depiction must be intended or
designed to elicit sexual response in average viewer rather than defendant; trial
judge did not err in refusing to instruct jury that photography of undressed
minor alone was insufficient to convict defendant of especially aggravated
sexual exploitation of minor when definitions of sexual activity and
lascivious were sufficient to instruct jury that more than mere nudity was
required to convict defendant of charged offenses. State v. Whited, 5/4/15,
Knoxville, Williams, dissent by McMullen, 25 pages.
http://www.tncourts.gov/sites/default/files/whitedopn_0.pdf

PUBLIC CHAPTER
FAMILY LAW: Obligor and obligee may compromise and settle child
support arrearage balance owed directly to obligee, with court approval.
2015 PC 200, effective 7/1/15, 3 pages
http://www.tn.gov/sos/acts/109/pub/pc0200.pdf

SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: When Association of African Hair Braiders
and nine individual African Hair Braiders located in Memphis challenged
constitutionality of Tennessees cosmetology regulation (Board of
Cosmetology Rule 0440-1-.03(5)) requiring natural hair stylists to attain 300
clock hours to be licensed to practice for compensation, district court

properly dismissed substantive due process and equal protection claims. Bah
v. Attorney General of Tennessee, 5/8/15, Siler, 13 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0348n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Request for medical and temporary
disability benefits of employee, pilot with Fedex who contended he
contracted bird flu or swine flu while flying around China, is denied;
employee failed to establish by expert medical evidence that his illness arose
primarily out of and occurred in course and scope of his employment when
no medical doctor reported that there was causal connection between
conditions under which employee worked and illness he contracted. Weiland
v. Fedex Express Co., 1/28/15, Umsted, 7 pages.
http://trace.tennessee.edu/utk_workerscomp/44/

WORKERS COMPENSATION: Sufficient evidence exists to prove that

employee, painter who fell and injured his left leg when ladder buckled,
suffered acute injury arising primarily out of and in course and scope of his
employment; employee was justified in seeking medical treatment on his
own when employer refused to talk to him or provide medical treatment;
when employee proved that his health care providers recommended that he
remain off work until orthopedic doctor evaluated him, employer must pay
employee temporary total disability from date after his injury until present
and must continue payment of temporary total disability benefits until
orthopedic doctor evaluates employee and addresses his work restrictions.
Lamb v. Certified Painting Inc., 2/2/15, Addington, 7 pages.
http://trace.tennessee.edu/utk_workerscomp/46/

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