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TAM-BYTES

August 29, 2016


Vol. 19, No. 35
TAM Webinars
Whistleblowing in Tennessee: Update on Retaliatory Discharge and
the TPPA, 60-minute webinar presented by David Johnson and April
Knox, with Butler Snow, on Wednesday, October 5, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
FDCPA: Critical Changes and Current Developments, 60-minute
webinar presented by Ned Hildebrand, with Dunham Hildebrand in
Nashville, on Thursday, October 13, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Slip & Fall Cases in Tennessee: Gathering Evidence, Trial Tactics, and
Using Experts, 90-minute webinar presented by Bryan Moseley, with
Moseley & Moseley in Murfreesboro, on Thursday, October 20, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit

TAM On-Site Events


Family Law Conference for Tennessee Practitioners
WHEN: Thursday & Friday, October 6-7
Thursday & Friday, December 1-2
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: Sandy Garrett, Chief Disciplinary Counsel, Board of
Professional Responsibility; Barry Gold, McWilliams & Gold, Chattanooga; James
(Jimmy) D. Helton, II, Helton Law Office, Brentwood; Judge Jeff Hollingsworth,
circuit court, Hamilton County; Stanley A. Kweller, Jackson, Kweller, McKinney,
Hayes, Lewis & Garrett, Nashville; Brent Lankford, Stites & Harbison PLLC,
Nashville; Jeff Levy, Nashville attorney; Sean J. Martin, Martin Heller Potempa &
Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th Judicial District
(Montgomery and Robertson counties); Marlene Moses, MTR Family Law, PLLC,

Nashville; Kevin Shepherd, Maryville attorney; Judge Keith Siskin, circuit court, 16th
Judicial District (Cannon and Rutherford counties); Greg Smith, Stites & Harbison
PLLC, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District (Greene,
Hamblen, Hancock, and Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton PLLC,


Memphis; Judge Joe Binkley, circuit court, Davidson County; Judge Robert L. Childers,
circuit court, Shelby County; J. Todd Faulkner, Law Office of J. Todd Faulkner,
Nashville; Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy) D. Helton, II,
Helton Law Office, Brentwood; Candi Henry, Dodson Parker Behm & Capparella PC,
Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard, Nashville; Judge Phillip
Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; Eileen Burkhalter Smith, Disciplinary
Counsel, Board of Professional Responsibility; and Judge Joseph Woodruff, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties).

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;


technology for the family law practitioner; retirement plans and QDROs; practical tips
from judges across the state; spousal/child support awarding, modifying, or
terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family matters;
case law/legislative update; ethics and professionalism in family law practice; and
attorneys ethical use of social media.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/family-law-2016
************************************************************

Tennessee Real Estate Law Conference


WHEN: Friday, October 14
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: T. Kevin Bruce, Hagler Bruce & Turner, Memphis; Griffin Dunham,
Dunham Hildebrand, Nashville; Matthew Ellis, Batson Nolan, Clarksville; Pete Ezell,
Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville; David Wilson Long,
Long, Ragsdale & Waters, Knoxville; Kirk Moser, Old Republic National Title
Insurance Company, Nashville; Scott Thomas, Bass, Berry & Sims, Nashville; and Wes
Turner, Gullett Sanford, Robinson & Martin, Nashville.

HIGHLIGHTS: Special considerations for commercial and investment transactions,


including 1031 exchanges; opinion letters in real estate transactions; hot topics in title
insurance; TILA-RESPA issues, including new requirements and necessary information;
the effect of bankruptcy on commercial and residential real estate; environmental issues

in real estate transactions; ethical considerations in real estate law; and real estate case
law/legislative update.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-real-estate-2016
************************************************************

Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: Thursday & Friday, October 20-21
Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Michael W. Dale, Harvill Ross
Hogan and Ragland, Clarksville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Carla Lovell, Sherrard Roe
Voight & Harbison, PLC, Nashville; Barbara Boone McGinnis, Elder Law Practice of
Timothy L. Takacs, Hendersonville; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC,
Nashville; Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel,
Poss & Moore, Nashville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

DECEMBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker,
Behm & Capparella P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson,
PLLC, Knoxville; Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight &
Harbison, PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek,
PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville;
Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss &
Moore, Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L.
Takacs, Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips for

probating a will and administering estates; planning for digital assets; probate litigation
case law and legislative update; ethical issues facing trust and estate planning attorneys;
and ethics in elder care.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/probate
************************************************************

Tennessee Workers Comp Conference


WHEN: November 9, 10, & 11
Wednesday afternoon, Thursday (all day), & Friday (morning),
WHERE: Franklin Embassy SuitesNashville South/Cool Springs
CLE: Earn up to 15 hours of CLE (14 GENERAL and 1 DUAL)
On Thursday, attendees may choose to attend a track designed for attorneys or one
designed for employers and others or you may mix the tracks to better serve your
needs. You get an interactive program, including panel discussions the speakers
welcome your questions and feedback.

FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela


Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF WORKERS
COMPENSATION: Troy Haley; Brian Holmes; and Robert B. Snyder, M.D.
WORKERS COMP/EMPLOYMENT LAW ATTORNEYS: Mary Dee Allen, Wimberly
Lawson Wright Daves & Jones PLLC; Fred Baker, Wimberly Lawson Wright Daves &
Jones PLLC ; Leslie Bishop, Lewis, Thomason, King, Krieg, & Waldrop, P.C.; Kitty
Boyte, Constangy, Brooks, Smith & Prophete, LLP; Adrienne B. Fazio, Manier &
Herod; T. Joseph Lynch, III, Wimberly Lawson Wright Daves & Jones PLLC;
Marshall McClarnon, Ponce Law; Stacie D. Miller, Arnett, Draper & Hagood, LLP;
Jessica Housch Silinsky, Carr Allison; and Kenneth D. Veit, Leitner, Williams, Dooley
& Napolitan PLLC. EMPLOYMENT LAW ATTORNEY: Greg Grisham, Ford &
Harrison LLP. OTHERS: Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine
and Rehabilitation, subspecialty Board Certification in Pain Medicine and Dawn TrojanRandle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Youll hear from Chief Judge Ken Switzer and Judge Pam
Johnson, with the Court of Workers Compensation Claims, as well as Judges Tim
Conner and Marshall Davidson of the Workers Compensation Appeals Board; youll
gain insight on causation issues under the new law from a panel of attorneys and
physicians, hear about when it is appropriate to terminate an employee who has filed a
workers comp claim, and receive a comparison of how workers comp injuries are
resolved under the old (pre-July 1, 2014) versus the new (post-July 1, 2014) law;
youll get an update on the latest rulings from the Workers Compensation Appeals
Panels, the Workers Compensation Appeals Board, and the Court of Workers
Compensation Claims; youll hear from Bureau of Workers Compensation

representatives on the employer penalty process, Drug Formulary, pain management


rules, and the ombudsman/mediation program; and youll also get up to date on
complex issues, such as Medicare set-asides, handling disputes over an employees
future medical benefits, new pain management rules, hot topics from the plaintiffs
perspective, and ethical issues arising under the new law.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-workers-comp
************************************************************

Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, November 17-18
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge
Thomas R. Frierson, II, Court of Appeals, Eastern Section; Judge W. Neil Thomas,
III, Circuit Court, Hamilton County; Chancellor Ellen Hobbs Lyle, Chancery Court,
Davidson County; Brandon Bass, Law Offices of John Day, PC; Harlan Dodson,
Dodson, Parker, Behm & Capparella, PC; Sandy Garrett, Chief Disciplinary Counsel,
Board of Professional Responsibility; John J. Hollins, Jr., Thompson Burton PLLC;
Helen Rogers, Rogers, Kamm & Shea; Kara E. Shea, Butler Snow LLP; Tom Shaw,
Assistant General Counsel, Corrections Corporation of America; W. Russell Taber, III,
Riley Warnock & Jacobson, PLC; Wesley D. Turner, Gullett Sanford Robinson &
Martin PLLC; Chris Vrettos, Gideon, Cooper & Essary PLC; and Clifford Wilson,
Howard Tate Sowell Wilson Leathers & Johnson, PLLC.

HIGHLIGHTS: Get an overview from Chancellor Ellen Hobbs Lyle about the
practice and procedures in the states new business court; get up to date on the latest
developments in the areas of personal injury, family law, and real estate; get practice
pointers from Hamilton County Circuit Judge Neil Thomas on oral and written skills to
use in filing and presenting various pretrial motions; learn the ins and outs of appellate
practice and procedure and the deferential abuse of discretion standard of review from
Court of Appeals Judge Frank Clement; get tips and strategies on advising your clients
about the time overtime procedure, which is set to take effect on December 1; learn how
to use websites and social media to promote yourself and your law practice; get an
insiders perspective from the Chief Disciplinary Counsel on the Boards recent
developments; gain insight from Court of Appeals Judge Thomas Frierson on accepting,
terminating, or declining representation.

IN THIS WEEKS TAM-Bytes


Supreme Court upholds denial of pretrial diversion in two cases when
prosecutors properly relied upon multiple factors in denying diversion,
prosecutors did not unduly consider any irrelevant factors, and
substantial evidence supported prosecutors decisions in each case;
Court of Appeals, in divorce case, rules judges personal and
extrajudicial activities with husbands counsel, as reflected on social
media, created appearance of bias on part of trial judge that required
his recusal;
Court of Criminal Appeals says failure of law enforcement officials to
inform suspect of all possible subjects of interrogation is not relevant to
determining whether suspect voluntarily, knowingly, and intelligently
waived his or her Fifth Amendment privilege; and
Court of Criminal Appeals reverses post-conviction courts holding
that petitioner received ineffective counsel in failing to seek
severance, failing to interview witnesses from store where victim was
allegedly kidnapped, and deciding to call witness to testify without
first adequately interviewing that witness.
SUPREME COURT
CRIMINAL SENTENCING: Prosecutor did not abuse discretion in
denying pretrial diversion to defendant who was indicted on two counts of
statutory rape and two counts of contributing to delinquency of minor when
prosecutor considered all relevant factors, prosecutor did not unduly
consider any irrelevant factors, and substantial evidence supported
prosecutor's findings that defendant's amenability to correction, ends of
justice, best interests of public and defendant, and need for deterrence
militate in favor of prosecution and against pretrial diversion; district
attorney has sole discretion to determine whether to grant pretrial diversion
to one who meets strict statutory requirements, and reviewing appellate court
may only consider evidence presented to district attorney, may not reweigh
facts, and may not substitute its judgment for that of district attorney. State
v. Stephens, 8/23/16, Nashville, Clark, unanimous, 16 pages.
http://www.tncourts.gov/sites/default/files/stephenss.g.opn_.pdf

CRIMINAL SENTENCING: Prosecutor did not abuse discretion in denying


pretrial diversion to defendant who was indicted for assault after allegedly
attacking student at school where he worked as teacher's assistant when
prosecutor concluded that circumstances of offense, defendant's lack of

amenability to correction, need for deterrence, and public interests and ends of
justice favored prosecution; district attorney has sole discretion to determine
whether to grant pretrial diversion to one who meets strict statutory
requirements, and reviewing appellate court may only consider evidence
presented to district attorney, may not reweigh facts, and may not substitute its
judgment for that of district attorney; although trial court's review of
prosecutor's denial of diversion was inadequate trial court failed to determine
whether prosecutor had properly considered each of relevant factors Court of
Criminal Appeals erred in conducting its own review by re-examining
evidence from defendant's diversion application and concluding that record
lacked substantial evidence supporting denial of diversion. State v. Hamilton,
8/23/16, Knoxville, Clark, unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/hamiltong.opn_.pdf

FAMILY LAW: Supreme Court Rule 40A(1)(a), which governs


appointment of guardians ad litem in child custody proceedings, is amended
to remove contested private guardianship cases from definition of child
custody proceeding. In re Amendment to Supreme Court Rule 40A,
8/25/16, Nashville, 2 pages.
http://www.tba.org/sites/default/files/tsc_rule40_order_082516.pdf

COURT OF APPEALS
TORTS: In healthcare liability action arising from care received by plaintiff
following ATV accident defendant doctor initially determined that plaintiff
did not need to be hospitalized but later CT-scan revealed humerus fracture
with ancillary ulnar nerve injuries trial court properly granted defendants
summary judgment; given that only evidence in record shows that plaintiffs
abrasion was superficial, and given testimony of plaintiffs expert that if, in
fact, this wou[n]d was not full-thickness skin injury; then, in my opinion,
what [defendant] did in the emergency room on September 7th was
appropriate, this proof, by plaintiffs own expert, effectively negates
essential element of plaintiffs case, i.e., that defendant deviated from
applicable standard of care; testimony of plaintiffs expert for example,
expert answered True, when asked if he could not say to reasonable degree
of medical certainty whether any different treatment on defendants part
would have changed the outcome for plaintiff fails to provide reasonable
basis for conclusion that it is more likely than not that defendants conduct
was cause in fact of plaintiffs injuries. Duncan v. Ledford, 8/24/16,
Jackson, Armstrong, 14 pages.
http://www.tncourts.gov/sites/default/files/duncanopn.pdf

EMPLOYMENT: In case in which plaintiff, who had served as police


officer for City of Cleveland (City) Police Department since 1990, was fired
on 9/12/11, 11 months after filing charge of discrimination with Equal
Employment Opportunity Commission, plaintiff filed suit in federal court
asserting claims of sexual discrimination, hostile work environment, and
retaliation against City under Tennessee Human Rights Act plaintiff
claimed that discriminatory acts continued until 1/18/12, when she was
interviewed by TBI for allegedly filing false timesheets while employed by
City all claims in federal court action were dismissed without prejudice on
8/13/13, and plaintiff filed suit in state court on 8/12/14, asserting same
state-law claims, trial court properly dismissed plaintiffs claims as timebarred upon finding that they arose from discrete act of terminating
plaintiffs employment in 9/11; there are only two situations in which
continuing violation doctrine applies in Tennessee first, when there has
been a longstanding and demonstrable policy of discrimination such as an
established and repeated pattern of paying men more than women, and
second, when there is some evidence of present discriminatory activity
giving rise to claim of continuing violation. Jackson v. City of Cleveland,
8/22/16, Knoxville, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/jacksonc_-_opn.pdf

INSURANCE: When plaintiff was involved in auto accident with uninsured


motorist, plaintiff brought suit against his uninsured motor vehicle insurance
carrier, and insurance carrier argued that plaintiff was operating vehicle not
insured under policy but available for his regular use, trial court properly
granted carrier summary judgment; regular use exclusion in plaintiffs
insurance policy does not violate public policy. Shempert v. Cox, 8/24/16,
Jackson, Gibson, 9 pages.
http://www.tncourts.gov/sites/default/files/shempertmarkaopn_1.pdf

COMMERCIAL LAW: In suit involving unauthorized sale of trailer by


third party, trial court properly held that original owner of trailer, who holds
certificate of title, is entitled to possession of trailer rather than party
claiming to be bona fide purchaser; purchasing in good faith and for value, by
itself, is not sufficient to entitle buyer to protection of UCC 2-403(2); when
record contains no evidence to demonstrate that third party was merchant
who dealt in trailers of kind at issue, original owner testified that third party
operated limestone operation, although original owner mentioned that he
transferred title to some other trailers to third party, and defendant purchased
total of three scrap trailers from third party according to bill of sale, evidence
does not support finding that third party or limestone operation was in the

business of selling goods of that kind on regular basis; defendant is not


entitled to protection of entrustment statute regardless of whether he might
have purchased trailer in good faith or otherwise qualified as bona fide
purchaser. Duffy v. Elam, 8/24/16, Jackson, Gibson, 7 pages.
http://www.tncourts.gov/sites/default/files/duffyrayopn.pdf

CONTRACTS: When claimants, decedents parents, filed claim against


estate for $28,571, debt of $28,571 was allegedly incurred by decedent in
2012 as loan to pay off mortgage on her home to prevent foreclosure, and
administratrix filed exception to claim arguing that it was barred by the
Statute of Frauds, trial court properly ruled that statute of frauds was not
applicable; although administratrix argues that decedent could not have paid
loan back due to her limited income, it is not sufficient to show that it is not
reasonably possible to perform contract within one year, or that such would
probably not be done; evidence did not clearly and convincingly support
administratrixs contention that $28,571 was intended as gift, but rather it
supports trial courts finding that funds were intended as loan to decedent for
which her estate should bear cost of repayment. In re Estate of Reed,
8/22/16, Knoxville, Goldin, 11 pages.
http://www.tncourts.gov/sites/default/files/in_re_estate_of_lana_hopson_reed.2.pdf

PROPERTY: When bank sued appellant (Best) with regard to alleged debt
owed on account titled in name of MILDRED E. BEST POA, trial court
properly ruled that Account was joint account with right of survivorship
when appellant, who argued Account was power of attorney account, did not
sign signature card with designation POA, Best signed signature card
solely in her own name, record is devoid of any evidence that Best ever
executed power of attorney naming appellant as her attorney-in-fact, and
banks Rules and Regulations clearly and unambiguously provide that
appellant was not permitted to change the account ownership to anything
other than a joint tenants with right of survivorship, without the Banks
approval and that bank will treat all Joint Accounts, unless otherwise
indicated on the Banks records, as joint tenants with right of survivorship
for all purposes; fact that Account title was written as Mildred E. Best
POA, does not show that bank had approved change in account ownership
or that the bank was designating Account as anything other than joint
account with right of survivorship; when signature card and banks Rules
and Regulations provide that attorney fees may be awarded in amount up to
25 percent, or an amount as permitted by law, of the amount owed to
[bank], clause or an amount as permitted by law is not intended to allow
for award of attorney fees in excess of contractually allowed amount of up
to 25 percent of the amount owed to [bank], rather clause is intended to

address circumstances wherein award of attorney fees in contractually


allowed amount of up to 25 percent of the amount owed to [bank]
exceeds amount permitted by law; award of attorney fees is modified to
comport with contract created by signature card and Rules and Regulations.
SunTrust Bank v. Best, 8/26/16, Knoxville, Swiney, 22 pages.
http://www.tncourts.gov/sites/default/files/suntrustbopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


decision to designate father primary residential parent of parties two
children when father was more stable and ran his own business with more
flexible work hours, mother moved from Jackson to Dickson instead of
cities she mentioned in notice of relocation she provided to father, in
Dickson, she moved into home of her boyfriend and his mother, where
parties son slept on couch for period, and daughter shared room with
boyfriends mother, mother admitted that her employment change was
lateral move in sense that she had same title as her job position in Jackson
she received $2,000 annual increase in her salary but also had long
commute to work trial court found that mother had no valid reason to
move except to be with her boyfriend, trial court noted that mother also
moved second time in Dickson without informing father, and mother made
visitation difficult for father both before and after move and thwarted
fathers visitation for over month after she moved. Dayhoff v. Cathey,
8/25/16, Jackson, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/dayhofftashaopn.pdf

CIVIL PROCEDURE: Trial judge did not err in denying motion for
recusal in case in which plaintiffs asserted numerous causes of action to
recover for injuries allegedly sustained by individual while she was resident
of Allenbrooke Nursing and Rehabilitation Center; defendants contend that
trial court has made numerous comments that indicate that the trial court
has preconceived perceptions regarding Defendants based on litigation
completely unrelated to this case and has prejudged the issue of personal
jurisdiction over them, but trial courts comments do not invoke
requirements of Rule 2.11(A) of Code of Judicial Conduct that judge recuse
himself or herself in any proceeding in which the judges impartiality might
reasonably be questioned, while, in course of hearings, judge at time made
comments, sometimes in jest, nothing in comments indicate that judge had
prejudged any issue or was biased against any defendant or toward plaintiffs,
or that comments were anything other than banter that is typically engaged
in when motions of this type are heard. Hatfield v. Allenbrooke Nursing &
Rehabilitation Center LLC, 8/25/16, Jackson, Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/hatfieldcopn.pdf

CIVIL PROCEDURE: Trial court erred in failing to grant wifes recusal


motion in divorce case when unique circumstances of case, i.e., judges
personal and extrajudicial activities with husbands counsel, as reflected on
social media, created appearance of bias on part of trial judge that required
his recusal; photographs of social interactions between trial judge and
husbands counsel, taken from trial judges Instagram account, depict
closeness to their friendship that undermined wifes confidence in trial
judges ability to remain independent and impartial; effect of trial judges
action in accepting wifes follow request was to initiate ex parte online
communication with litigant whose case was then pending before him,
which is prohibited by Rule 2.9(A) of Code of Judicial Conduct;
photographs which trial judge allowed wife to view on his account, by
accepting her follow request, would lead a person of ordinary prudence
in the judges position, knowing all of the facts known to the judge, to find
a reasonable basis for questioning the judges impartiality. Frazier v.
Frazier, 8/26/16, Knoxville, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/frazier_v._frazier.pdf

GOVERNMENT: Tennessee Board of Medical Examiners had subject


matter jurisdiction to sanction physician for his conduct while his license
was active, even though license was not active at time sanction was imposed
physicians status as licensee was not altered by fact that his license had
been automatically revoked due to his failure to renew license. Oni v.
Tennessee Department of Health, 8/23/16, Nashville, Bennett, 22 pages.
http://www.tncourts.gov/sites/default/files/onia.r.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL PROCEDURE: In case in which defendant was convicted of
two counts of aggravated rape, trial judge properly denied defendants
motion to suppress his statement to police when, although defendant initially
believed that officer was there to question him about stalking case,
defendant voluntarily, knowingly, and intelligently waived his Miranda
rights prior to being informed that officer was investigating rape, and
defendant did not object to officers continued questioning or attempt to
revoke his waiver after being informed about what officer was investigating;
failure of law enforcement officials to inform suspect of all possible subjects
of interrogation is not relevant to determining whether suspect voluntarily,
knowingly, and intelligently waived his or her Fifth Amendment privilege;
statements made to 911 operator by witness statements which were made

shortly after victim knocked on witnesss door and told him that she had
been raped were admissible at trial under excited utterance exception to
hearsay rule. State v. Ibrahim, 8/22/16, Nashville, Thomas, 20 pages.
http://www.tncourts.gov/sites/default/files/ibrahimmervanopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of attempted


first degree murder, especially aggravated robbery, aggravated robbery, and
especially aggravated assault, all under theory of criminal responsibility,
trial judge erroneously instructed jury on criminal responsibility by stating
that defendant is also criminally responsible for an offense committed by
the conduct of another if, having a duty imposed by law or voluntarily
undertaken to prevent commission of the offense and acting with intent to
benefit in the proceeds or results of the offense, or to promote or assist in its
commission, the Defendant failed to make a reasonable effort to prevent
commission of the offense, but error was harmless when proof clearly
established that defendant assisted in commission of offense rather than
failed to act pursuant to legal duty to prevent offenses; defendants sentence
of 100 years for being criminally responsible for crimes of another did not
constitute cruel and unusual punishment under either Eighth Amendment
or Tenn. Const. Art. I, Sec. 16. State v. Wallace, 8/25/16, Jackson,
Woodall, 14 pages.
http://www.tncourts.gov/sites/default/files/wallaceguaryopn.pdf

CRIMINAL PROCEDURE: Post-conviction court erred in concluding that


petitioner received ineffective assistance of counsel in failing to seek
severance of two counts of aggravated robbery from especially aggravated
kidnapping charge, either pretrial or after judgments of acquittal were
granted on aggravated robbery charges, in failing to interview witnesses
from store where victim was allegedly kidnapped and in deciding to call
witness to testify after learning of witness in middle of trial; petitioners
conviction for especially aggravated kidnapping is reinstated. Little v. State,
8/19/16, Knoxville, Thomas, 17 pages.
http://www.tncourts.gov/sites/default/files/littlejeremeopn_0.pdf

SIXTH CIRCUIT COURT OF APPEALS


COMMERCIAL LAW: When defendant hired plaintiff to market its hand
cleaner to Wal-Mart, after plaintiff pitched product to Wal-Mart for several
years, making significant progress, but without signing deal, defendant fired
plaintiff, and defendant later completed sale of cleaner to Wal-Mart but
refused to pay plaintiff commission, district court properly ruled in favor of

defendant in plaintiffs breach of contract action; when contract provided for


commission for orders solicited prior to the effective date of
termination, there could be no orders solicited unless Wal-Mart had
actually placed order, and that did not occur before termination date.
Maverick Group Marketing Inc. v. Worx Environmental Products Ltd.,
8/25/16, Boggs, dissent by Clay, 16 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0505n-06.pdf

CIVIL PROCEDURE: When plaintiff, in her individual capacity and as


personal representative of estate of her late husband (decedent), filed suit
against Memorial Health Care System, Inc. (defendant) raising claims under
Emergency Medical Treatment and Active Labor Act (EMTALA) and
Tennessee Consumer Protection Act (TCPA), district court correctly ruled
that saving statute did not apply to save plaintiffs second complaint
containing TCPA causes of action from effects of one-year statute of
limitation when original complaint mentioned only two grounds justifying
judgment, spoliation of evidence and alteration of medical records, and
TCPA causes of action set forth in subsequent complaint did not arise from
alteration or improper preparation of hospital records, but alleged claim that
defendants website misrepresented that its stroke team was highly trained,
and by implication, competent to diagnose and treat individuals presenting
with stroke symptoms, claim that defendants staff misdiagnosed decedent as
suffering from Bells palsy and thus provided him with treatment that was not
needed, and claim that defendants advertisements created false impression of
quality of medical services hospital could provide to stroke patients; district
court properly granted summary judgment to defendant on federal cause of
action when plaintiff offered no evidence that any damages suffered by
decedent after onset of stroke were traceable to EMTALA violations. Scott v.
Memorial Health Care System, 8/22/16, Daughtrey, 15 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0492n-06.pdf

COURT OF WORKERS COMP CLAIMS


WORKERS COMPENSATION: When worker who was employed by
employer as crew supervisor in crawlspace encapsulation, allegedly
sustained injury to his right eye while working for employer, worker was
independent contractor, not employee, when worker maintained right to
control conduct of work, employer had right of termination, worker was
paid per job completed, worker had right to select and hire helpers,
employer furnished worker safety equipment, worker had right to selfschedule his working hours, and worker had freedom to offer services to

other entities. Timmerman v. Insta Dry of Knoxville, 4/18/16, Knoxville,


Johnson, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1392&context=utk_workerscomp

CIVIL PROCEDURE: In case in which employee claimed that he suffered


spider bite at work, because employee, who represented himself, refused to
provide discovery and ignored orders from court requiring that he do so,
employers motion to dismiss is granted with prejudice. Harris v. Subway,
4/12/16, Nashville, Baker, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1386&context=utk_workerscomp

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