TAM-BYTES

January 2, 2017
Vol. 20, No. 1

TAM Webinars

The Tennessee Attorneys Update on the Revised Uniform Fiduciary

Access to Digital Assets Act, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, February 16,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Healthcare Liability Cases in Tennessee: Notice and Certificate of

Good Faith, 60-minute webinar presented by Brandon Bass, with the Law
Offices of John Day in Brentwood, and Chris Tardio, with Gideon, Cooper
& Essary in Nashville, on Thursday, February 23, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Event

10th annual
Medical Malpractice Conference for Tennessee Attorneys
*(now expanded to 2 Days)*

WHEN: Thursday & Friday, May 4-5

WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Tom Brothers, Davidson County Circuit Court; Judge Jeff
Hollingsworth, Hamilton County Circuit Court; Brandon Bass, Law Offices of John Day
PC, Brentwood; William L. Bomar, Glankler Brown, PLLC, Memphis; Charles Higgins,
Burch, Porter & Johnson, PLLC, Memphis; Clint Kelly, The Kelly Firm, Hendersonville
Randy Kinnard, Kinnard Clayton & Beveridge, Nashville; Wendy Longmire, Ortale
Kelley, Nashville; James E. Looper, Jr., Hall Booth Smith, P.C., Nashville; Marty
Phillips, Rainey, Kizer, Reviere & Bell, PLC, Jackson; Chris Tardio, Gideon, Cooper &
Essary PLC, Nashville; and Joshua Walker, Associate General Counsel, University of
Tennessee, Knoxville
HIGHLIGHTS: Pre-suit notice and certificate of good faith requirements; review of
causation issues; medical battery and informed consent; choosing and using expert
witnesses; using medical records when examining witnesses; deposition strategies to help
you win at trial; voir dire and jury selection strategies; using technology in the courtroom;
dos and donts from a trial judge; review of recent healthcare liability appellate court
decisions; panel discussions of hot topics in healthcare liability actions; ethical issues
in dealing with medical records; and ethical issues arising during settlement negotiations.

PRICING: $497 (full program) ($427 for any additional attendees from same firm)
*Take $50 off until March 24 (early bird discount)*
$347 (one day only choose either Thursday or Friday)

*You may choose to attend both days or only one day whatever fits your schedule!
For more information or register, call us at (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court holds that state Ex Post Facto Clause has same
definition and scope as federal Ex Post Facto Clause and that
Tennessee Constitution does not provide broader ex post facto
protections than does federal constitution;
Supreme Court reverses stalking conviction, which was based on
defendants posting of signs about victim being deadbeat dad at
victims home and workplace, when proof did not establish that
victim subjectively felt significant mental suffering or emotional
distress as result of defendants actions;
Supreme Court adopts amendments to Rules of Appellate Procedure,
Rules of Civil Procedure, Rules of Criminal Procedure, and Rules of
Juvenile Procedure;
Supreme Court revises universally acceptable forms for uncontested
divorces with minor children;
Court of Appeals rules requirement for commercially reasonable
disposition applies only once secured party has possession, either
actual or constructive, of collateral;
Court of Appeals rules trial court erroneously placed burden on father
to prove that his relocation with children served reasonable purpose,
rather than placing burden on mother to show that relocation did not
serve reasonable purpose; and
Court of Criminal Appeals, in DUI case, rules trial court properly
allowed officer to testify about how defendant, during traffic stop,
failed to follow his instructions during administration of HGN test.
SUPREME COURT

CRIMINAL PROCEDURE: State Ex Post Facto Clause and federal Ex

Post Facto Clause have same definition; trial judge properly denied
defendants motion to suppress evidence obtained as result of search
warrant, when error in date on search warrant was good faith or technical
mistake; application of Exclusionary Rule Reform Act (ERRA), TCA 40-6-
108, to cases in which evidence was seized prior to statutes enactment does
not violate constitutional prohibition against ex post facto laws; State v.
Hayes, 38 TAM 41-23 (Tenn.Cr.App. 2013), which held that retroactive
application of ERRA would violate constitutional protections against ex post
facto laws, and Miller v. State, 584 SW2d 758 (Tenn. 1979), which
determined that state constitution provided broader ex post facto protections
than did federal constitution, are overruled. State v. Pruitt, 12/30/16,
Nashville, Page, unanimous, 25 pages.
http://www.tncourts.gov/sites/default/files/pruittjohnhenryopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

stalking based on her posting of disparaging signs about victim being
deadbeat dad on victims private property and on property of his
employer, which was public place, when, while placing disparaging signs at
ones place of employment could lead to feelings of harassment and could
cause emotional distress, evidence fell short of establishing that victim
subjectively felt significant mental suffering or emotional distress;
requirement of harassment, essential element of offense, is met by proof of
conduct that both would cause reasonable person to suffer significant mental
suffering or distress (objective test) and that actually causes significant
mental suffering or distress (subjective test). State v. Flowers, 12/30/16,
Nashville, Page, unanimous, 8 pages.
http://www.tncourts.gov/sites/default/files/flowersnicoleopn_0.pdf

APPEAL & ERROR: Notice of appeal will be filed with office of appellate
court clerk, rather than office of trial court clerk; fees and taxes will be paid
at initiation of case, except under limited circumstances; fees will be
submitted with applications for interlocutory appeal by permission from trial
court and for extraordinary appeal by permission on original application to
appellate court, rather than secured under former procedure of filing cost
bond; page limit is increased for facsimile filings to 50 from 10 pages. These
and other amendments to Tennessee Rules of Appellate Procedure will take
effect 7/1/17 if approved by General Assembly. In re Amendments to
Tennessee Rules of Appellate Procedure, 12/21/16, Nashville, 29 pages.
http://www.tncourts.gov/sites/default/files/tn_rules_of_appellate_procedure_-_amendment_order_12-21-2016.pdf

CIVIL PROCEDURE: Page limit for facsimile filings is increased to 50

from 10 pages. This amendment to Tennessee Rules of Civil Procedure will
take effect 7/1/17 if approved by General Assembly. In re Amendments to
Tennessee Rules of Civil Procedure, 12/21/16, Nashville, 5 pages.)
http://www.tncourts.gov/sites/default/files/tn_rules_of_civil_procedure_-_amendment_order_12-21-2016.pdf

CRIMINAL PROCEDURE: Appeal of right is provided following trial

courts denial of motion filed pursuant to TRCrP 36; page limit for facsimile
filing is increased to 50 from 10 pages. These and other amendments to
Tennessee Rules of Criminal Procedure take effect 7/1/17 if approved by
General Assembly. In re Amendments to Tennessee Rules of Criminal
Procedure, 2/21/16, Nashville, 5 pages.
http://www.tncourts.gov/sites/default/files/tn_rules_of_crimnal_procedure_-_amendment_order_12-21-2016.pdf

CRIMINAL PROCEDURE: If request for ex parte restraining order is

brought against parent of child and relief requested would interfere with
parents constitutional right to have care and control of child, court will be
required to proceed with preliminary hearing within 72 hours of entry of ex
parte order, pursuant to TRJP 302, rather than 15-day time frame; if court
determines that criteria for transfer have been satisfied and finds there is
probable cause rather than reasonable grounds for transfer, child may be
transferred to criminal court. These and other amendments to Tennessee
Rules of Juvenile Procedure take effect on 7/1/17 if approved by General
Assembly. In re Amendments to Tennessee Rules of Juvenile Procedure,
12/21/16, Nashville, 32 pages.
http://www.tncourts.gov/sites/default/files/tn_rules_of_juvenile_procedure_-_amendment_order_12-21-2016.pdf

FAMILY LAW: Supreme Court revises universally acceptable forms for

uncontested divorces with minor children. In re Petition of Access to
Justice Commission for Adoption of Universally Acceptable & Legally
Sufficient Forms & Instructions -- Plain Language Forms for
Uncontested Divorces with Minor Children, 12/22/16, Nashville, 42 pages.
http://www.tncourts.gov/news/2016/12/30/tennessee-supreme-court-adopts-forms-uncontested-divorce-parties-minor-children

COURT OF APPEALS

COMMERCIAL LAW: In suit by plaintiff, purchaser of loan from bank,

against trucking company and two guarantors seeking deficiency judgment
after disposition of collateral securing payment of debt, requirement for
commercially reasonable disposition found in TCA 47-9-610 applies only
once secured party has possession, either actual or constructive, of collateral;
when only evidence of bank exercising any control or dominion over
property after default was its direction to trucking company to continue its
use of collateral, there was no constructive possession; bank had no
obligation to agree to debtors request to repossess collateral, and banks
actions in refusing request did not render subsequent disposition of collateral
commercially unreasonable as matter of law; because plaintiff failed to show
that time between repossession and disposition was commercially reasonable,
trial court erred in granting plaintiff summary judgment. WM Capital
Partners LLC v. Thornton, 12/29/16, Nashville, McBrayer, 10 pages.
http://www.tncourts.gov/sites/default/files/wmcapitalpartnersv.thornton.pdf

COMMERCIAL LAW: When buyers agreed to purchase home on sellers

condition that home be removed from sellers real property at buyers
expense, parties entered into written contract on 1/25/13 at which time
buyers paid $2,500 deposit toward agreed price of $5,000 for home, contract
did not set forth deadline for home to be removed from sellers property,
sellers were required to demonstrate to lender financing their new
construction loan that home had been removed, buyers contacted several
potential house movers to transport home but did not execute final written
contract with any of them, sellers subsequently entered into written
agreement with movers who had originally been contacted by buyers,
retaining movers to take possession of home and transport it but providing
original buyers first option to purchase, after learning of agreement between
sellers and movers, buyers contacted movers, firing them, sellers then had
home demolished, and buyers filed suit for breach of home sales contract,
and sellers filed counterclaim alleging buyers materially breached contract
first by failing to timely remove home, trial court properly utilized parol
evidence to find that parties conduct and statements indicated reasonable
deadline for removal of home from property by 2/14/13; inasmuch as
buyers failure to timely remove home deprived sellers of their reasonable
expectation of timely closing on their construction loan without penalty,
evidence did not preponderate against trial courts finding that buyers
materially breached contract. Buckner v. Goodman, 12/29/16, Knoxville,
Frierson, 22 pages.
http://www.tncourts.gov/sites/default/files/buckner_opinion_final.pdf

COMMERCIAL LAW: When plaintiffs filed breach of contract suit on

behalf of decedent who died as result of suicide in Hamblen County Jail,
plaintiffs sought damages from designated emergency medical services
(EMS) provider pursuant to contract between provider and County, and
provider filed motion to stay and compel arbitration pursuant to terms of
contract, trial court erred in denying providers motion; while American
Health Lawyers Association Alternative Dispute Resolution Services Rules
of Procedure for Arbitration (AHLA) bestow authority upon arbitrator to
determine whether issue is not subject to arbitration, neither AHLA nor
service agreement provides arbitrator with sole authority to determine such
issues, and hence, trial court did not err in refusing to submit issue of
whether arbitration provision was valid to arbitrator; using most liberal
construction of definitions provided by AHLA, trial court erred in
classifying claim at issue as consumer claim when plaintiffs filed suit
pursuant to contract between County and EMS for failure to provide services
as promised in service agreement; plaintiffs claim is dependent upon
decedents status as third party beneficiary to service agreement, service
agreement explicitly provides that [a]ny dispute or controversy arising
under, out of or in connection with, or in relation to this Agreement, or any
amendment hereof, or the breach hereof shall be determined and settled by
arbitration, and hence, plaintiffs, as third party beneficiaries, are bound by
arbitration provision contained in service agreement between County and
EMS. Coffey v. Hamblen County, 12/28/16, Knoxville, McClarty, partial
dissent by Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/coffeyopn.pdf
http://www.tncourts.gov/sites/default/files/coffeybopn_dissenting.pdf

COMMERCIAL LAW: When Declaration of Covenants, Conditions and

Restrictions for development granted certain rights to individual/entity
described in document as Declarant, those rights include exemption from
payment of maintenance assessments to homeowners association under
certain circumstances, original owner of development defaulted on
construction loans, resulting in foreclosure sale of certain portions of
development property and personal property of original owner, and
appellant, successive owner of property sold at foreclosure, filed suit
asking trial court to declare it to be Declarant, trial court properly held
that appellant did not meet applicable definition of Declarant in
Declaration because appellants predecessor in interest did not acquire
entire interest of developer at foreclosure sale. Civis Bank v. Willows at
Twin Cove Marina Condominium & Home Owners Association,
12/28/16, Knoxville, Susano, 14 pages.
http://www.tncourts.gov/sites/default/files/civis_bank_opinion.pdf
FAMILY LAW: Evidence did not support termination of mothers parental
rights on ground of abandonment by engaging in conduct evidencing wanton
disregard for childrens welfare when mothers pre-incarceration conduct
did not demonstrate wanton disregard for childrens welfare despite lapses
in her behavior, mother has shown great deal of care and concern for
children, and she has made genuine effort to establish meaningful
relationship with them; evidence supported termination of mothers parental
rights on ground of persistence of conditions when mother, who has
improved in addressing some of behaviors she engaged in that led to her
incarceration and in her interaction with children, has not maintained similar
level of purpose and commitment with respect to addressing environmental
concerns that led to childrens removal. In re Renaldo M. Jr., 12/30/16,
Nashville, Dinkins, 15 pages.
http://www.tncourts.gov/sites/default/files/renaldo_m._16-00472-pt_opinion.pdf

FAMILY LAW: In case in which father, who was primary residential

parent of couples two children, notified mother of his intent to relocate with
children to Oklahoma from Tennessee, trial court concluded that because he
was petitioner, father bore burden of proof on whether move was for
reasonable purpose, and trial court subsequently denied fathers request to
relocate based on finding that move lacked reasonable purpose, trial court
erroneously placed burden on father to prove that his relocation served
reasonable purpose, rather than placing burden on mother to show that
relocation did not serve reasonable purpose; since enactment of
TCA 36-6-108, Parental Relocation Statute, in 2014, if parent seeking to
relocate spends greater amount of time with child(ren), parent opposed to
relocation bears burden of proving one of three statutory grounds found in
TCA 36-6-108(d)(1); trial courts judgment is vacated, and case is remanded
for new hearing on mothers opposition to fathers request. Stanley v.
Stanley, 12/30/16, Nashville, McBrayer, 9 pages.
http://www.tncourts.gov/sites/default/files/stanleyvstanley.pdf

CIVIL PROCEDURE: When plaintiff pursues two similar suits in different

venues, plaintiff runs risk of receiving unfavorable result in initial case and
having that result bind other case; order dismissing developers counterclaim
in chancery court was final, on merits, and rendered by court of competent
jurisdiction, developers second amended complaint in circuit court case and
counterclaim in chancery court case both involved same parties and same
cause of action and was or could have been brought in other suit, and hence,
as matter of law, doctrine of res judicata bars further litigation in matter.
Rainbow Ridge Resort LLC v. Branch Banking & Trust Co., 12/28/16,
Knoxville, Susano, 16 pages.
http://www.tncourts.gov/sites/default/files/rainbow_ridge_llc_et_al._v._branch_banking_and_trust_company_opinion.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Because defendant did not knowingly, voluntarily, and

intelligently waived his right to counsel prior to his sentencing hearing
trial court failed to determine whether there was competent and intelligent
waiver of such right by inquiring into defendants background, experience,
and conduct trial courts judgments are vacated, and case is remanded for
appointment of new counsel and new sentencing hearing; because trial court
did not warn defendant that any further misconduct would place his right to
counsel in jeopardy and because defendants misconduct was not extremely
serious, defendant did not implicitly waive or forfeit his right to counsel.
State v. Hughes, 12/23/16, Knoxville, McMullen, 13 pages.
http://www.tncourts.gov/sites/default/files/hughesmartin1.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of 34

counts of sexual exploitation of minor when Emerson, defendants live-in
girlfriend, examined defendants internet search history after observing his
strange behavior while using laptop computer, Emerson discovered searches
for preteen items like preteen models, preteens in panties, nude preteens,
which led her to questionable images, Emerson reported her findings to
sheriffs office, which seized defendants computer, defendant
acknowledged having looked for child porn on the internet, and detective
discovered 34 images that had been viewed on laptop and then deleted. State
v. Johnson, 12/28/16, Knoxville, Witt, 13 pages.
http://www.tncourts.gov/sites/default/files/johnsonjoshuaopn_0.pdf

EVIDENCE: With exception of HGN sobriety test, field sobriety tests are
not scientific tests requiring testimony of qualified expert pursuant to TRE
702; trial court properly allowed officer to testify about how defendant,
during traffic stop, failed to follow his instructions during administration of
HGN test. State v. Childress, 12/28/16, Nashville, Wedemeyer, 12 pages.
http://www.tncourts.gov/sites/default/files/childressdarrellopn.pdf

CRIMINAL SENTENCING: Defendants due process rights were not

violated by trial courts revocation of defendants two-year probationary
sentence for failure to appear when violation affidavits, which listed wrong
case number, were not fatally defective, but rather, contained clerical
error, and hence, defendants due process rights were not violated through
insufficient notice. State v. Begley, 12/30/16, Knoxville, Thomas,
Montgomery not participating, 6 pages.
http://www.tncourts.gov/sites/default/files/begley_opinion.pdf

TRIAL COURTS

CIVIL PROCEDURE: In suit by Nissan North America, Inc. (NNA),

corporation organized and existing under laws of California with its
principal place of business located in Franklin, Tenn., against one of its
automobile dealers, West Covina Nissan, LLC (West Covina), and three of
West Covinas employees, Mashabad, general manager, Jacobs, service
director, and Hess, manager of parts department, complaint alleged that
defendants, all located in California, have been engaged and continue to be
engaged, in massive scheme to defraud NNA out of millions of dollars by
submitting fraudulent warranty and repair claims to NNA for payment, and
plaintiff asserted three causes of action (violation of Tennessee Consumer
Protection Act, fraud, and negligent misrepresentation), West Covinas
motion to dismiss for lack of subject matter jurisdiction, personal
jurisdiction, and failure to state claim is denied; Jacobs motion to dismiss
for lack of personal jurisdiction and forum non conveniens is dismissed.
Nissan North America Inc. v. West Covina Nissan LLC, 12/6/16, Davidson
Chancery, Lyle, 62 pages.
https://www.tncourts.gov/node/4693046

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee worked for staffing

agency (Vaco), which placed her full time at Advisory Board Company
(ABC), employee walked into glass door at ABC on 11/17/14, making contact
with door face first, employee attended staff meeting shortly afterward where
she told co-workers about incident, on next day, employees nose became
bruised and swollen from impact, but it gradually healed over next month,
employee did not seek medical attention in days and weeks following
accident, and employee did not notify Vaco about injury until 7/7/15,
employee is likely to prevail at hearing on merits regarding sufficiency of her
notice of injury to Vaco when employee did not realize potential work-
relatedness or severity of condition of her left eye duct until 6/23/15 visit to
Williamson Medical Center emergency room, Williamson Medical Center
encounter prompted employee to give verbal notice to ABC on 6/23/15, as
soon as ABC reminded her on 7/7/15 that Vaco was her employer on date of
injury, employee immediately notified Vaco regarding injury, and Vaco failed
to show prejudice by employees failure to give proper notice. Miner v. Vaco
Holding LLC, 9/29/16, Nashville, Switzer, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1571&context=utk_workerscomp

WORKERS COMPENSATION: When employee testified that he was

working as forklift operator when he began having chest pain, employee
went to emergency room, attending physician diagnosed hypertension and
atypical chest pain, employees condition improved after he was
administered IV, and he was released, employee is not likely to meet his
burden of proving compensable injury in absence of medical opinion
addressing cause of his condition, and since he only seeks medical expense
reimbursement for his chest pain claim, this finding precludes any award of
benefits at this time; employees actions in reporting to his supervisor that
ringing in his ears was getting worse and attributing these problems to
workplace noise entitled employee to panel of physicians. Coffey v. Nissan
North America Inc., 9/30/16, Murfreesboro, Tipps, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1562&context=utk_workerscomp

WORKERS COMPENSATION: When Appeals Board vacated order

holding ACDF (anterior cervical discectomy and fusion) surgery requested
by employee and recommended by Dr. Schroerlucke, authorized treating
physician, was medically necessary and remanded for reconsideration,
employer did not rebut presumption of medical necessity through report of
Dr. Winans when Schroerlucke documented very criteria that Winans opines
are necessary under ODG Guidelines for ACDF. Morgan v. Macys,
9/30/16, Memphis, Phillips, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1563&context=utk_workerscomp

ATTORNEY GENERAL OPINION

GOVERNMENT: To extent municipal social media account is made

pursuant to law or ordinance or in connection with the transaction of
official business, that account, as well as any comments posted on that
account, constitute public records subject to inspection under Tennessee
Public Records Act. Attorney General Opinion 16-47, 12/22/16, 4 pages.
http://www.tn.gov/assets/entities/attorneygeneral/opinions/op16-047.pdf
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