TAM-BYTES

August 14, 2017

Vol. 20, No. 33

TAM Webinars

Helping Clients Market and Collect Via Telephone: TCPA Update

for Attorneys, 60-minute webinar presented by David Esquivel &
Elaina Al-Nimri, with Bass, Berry & Sims in Nashville, on Thursday,
September 7, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/tcpa-090717
or call (800) 727-5257.

Cybersecurity Cases and Trends: Helping Clients Comply and

Control Risks, 60-minute webinar presented by Justin Joy, with
Lewis, Thomason, King, Krieg & Waldrop in Memphis, on Wednesday,
September 20, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cyber-092017
or call (800) 727-5257.

Client Cybersecurity Update: Top 10 Things to Do in the Event of a

Data Breach, 60-minute webinar presented by Paige Boshell & Mike
Pennington, with Bradley Arant Boult Cummings in Birmingham, AL, and
Alex Purvis, with Bradley Arant Boult Cummings in Jackson, MS, on
Wednesday, September 27, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/data-breach-092717
or call (800) 727-5257.

Tax Consequences in Tennessee Divorce Cases, 60-minute webinar

presented by Caroline Beauchamp, with McCarter & Beauchamp in
Brentwood, and Cheryl Panther, with Panther Financial Services in
Nashville, on Thursday, September 28, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/divorce-tax-092817
or call (800) 727-5257.
 On-Site Events

Personal Injury Law Conference for Tennessee Attorneys

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21 & 22
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties);
Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge
Walter Kurtz, former Davidson County Circuit judge/former Tennessee senior judge;
Laura Baker, Law Offices of John Day, Brentwood; Brandon Bass, Law Offices of
John Day, Brentwood; J. Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett,
Batson Nolan, Clarksville; James Exum, Leitner, Williams, Dooley & Napolitan,
Chattanooga; Steve Gillman, Pryor, Priest, Harber, Floyd & Coffey, Knoxville; Michael
H. Johnson, Howard, Tate, Sowell, Wilson, Leathers, & Johnson, Nashville; Mary
Ellen Morris, Kinnard, Clayton & Beveridge, Nashville; Bryan Moseley, Moseley &
Moseley, Murfreesboro; William J. Rieder, Spears, Moore, Rebman & Williams,
Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile

insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

 Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12 & 13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn

Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District; Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R.
Newman, Puryear, Newman & Morton, Nashville; Judge Phillip Robinson, circuit court,
Davidson County; Kevin Shepherd, Maryville attorney; Greg Smith, Stites & Harbison,
Nashville; Scott Womack, Lattimore Black Morgan & Cain, Nashville; and Judge
Thomas Wright, circuit court, 3rd Judicial District

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;

David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District;
Judge Robert L. Childers, retired circuit court judge, Shelby County; Dawn Coppock,
Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick & York, Cookeville;
C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry McMillan, chancery
court, 19th Judicial District; Marlene Eskind Moses, MTR Family Law, Nashville;
Phillip R. Newman, Puryear, Newman & Morton, Nashville; Judge Phillip Robinson,
circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Eileen Burkhalter
Smith, Disciplinary Counsel, Board of Professional Responsibility; and Greg Smith,
Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital

property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

For more information, visit www.mleesmith.com/family-law-conference or call (800) 727-5257.

 10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.

 11th annual
Tennessee Workers Comp Conference
WHEN: WEDNESDAY, THURSDAY & FRIDAY, NOVEMBER 8-10
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge

Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
WORKERS COMPENSATION: Troy Haley. 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; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims

and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)
*Take $50 off of full program until October 13 (early bird discount)*

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.

 Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor

Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile

insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same
firm/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)
*Take $50 off until October 13 (early bird discount)*

For more information, visit www.mleesmith.com/tlc or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court upholds public censure of attorney for failing to keep

client informed about status of her case and failing to act with
diligence in representing client, resulting in lengthy delay in
resolution of stepparent adoption;
 Workers Comp Panel holds employers conduct, through its workers
compensation insurance carrier, in erroneously handling employees
claim under Mississippi law and in failing to adhere to Tennessee
claim handling, was sufficient to invoke doctrine of equitable estoppel
and prevent employer from relying on statute of limitation;
Court of Appeals says substantial compliance with documentation
requirement in TCA 29-26-121 when filing healthcare liability suit is
sufficient even when defendant is governmental entity;
Court of Appeals rules claims commission erred in determining that it
lacked subject matter jurisdiction to hear claim by inmate against
State of Tennessee alleging that state employees negligently
supervised and retained prison guard who sexually assaulted inmate;
Court of Appeals upholds termination of mothers parental rights on
ground of abandonment by failure to establish suitable home when,
although effort expended by Department of Childrens Services (DCS)
to assist mother occurred well into four-month period prior to filing of
termination petition, DCSs efforts in this regard were sufficient;
Court of Criminal Appeals reverses conviction for issuing worthless
check when finance manager of car dealership knew or had good
and sufficient reason to believe that defendant had insufficient
funds when defendant requested that manager hold check for two
days before cashing it;
Court of Criminal Appeals reverses conviction for hindering secured
creditor when rational juror could only find that defendant knowingly
obtained second lien on vehicle, and under TCA 39-14-116, this does
not constitute crime because statute explicitly requires intent to
hinder enforcement;
Davidson Chancery Court awards $21 million in suit against
dealerships former parts and service director who submitted false,
fictitious, and fabricated warranty repair claims for repairs either not
performed or not needed; and
Court of Workers Comp Claims rules temporary permanent disability
benefits were foreclosed by employees retirement which was
unrelated to her injuries.

SUPREME COURT

PROFESSION OF LAW: In case in which attorney failed to keep his

client reasonably informed about status of her stepparent adoption case,
failed to promptly comply with clients requests for information, and failed
to act with diligence in his representation of client, thereby causing lengthy
delay in resolution of adoption, public censure was appropriate sanction;
attorneys firm policies, practices, and procedures for communicating with
clients and monitoring case files were ineffective, and although attorney
blamed problems on his staff, he admitted that he was responsible for
shortcomings of his staff. Garland v. Board of Professional Responsibility,
8/10/17, Knoxville, Lee, dissent by Kirby, 18 pages.
http://www.tncourts.gov/sites/default/files/garlandd.opn_.pdf
http://www.tncourts.gov/sites/default/files/garlandd.disopn.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When trial court chose to accredit

doctors opinion that workplace noise was primary cause of aggravation of
employees low frequency hearing loss, and because employee already had
severe to profound hearing loss in higher frequencies in 1974, trial court
concluded that employee failed to prove that such workplace noise was
primary cause of aggravation of his hearing loss in higher frequencies, trial
courts analysis of evidence was reasonable and finding that workplace noise
was primary cause of aggravation of employees low frequency hearing loss is
affirmed; evidence did not preponderate against trial courts assessment of
40% permanent disability to hearing of both ears when employee testified that
he had difficulty understanding conversation in noisy environments and that
he had to adjust his television to extremely high volume in order to understand
dialogue, doctor recommended that employee be fitted with hearing aids, and
trial court observed employee as he heard and answered questions. Bell v.
Goodyear Tire & Rubber Co., 8/7/17, Jackson, Summers, 9 pages.
http://www.tncourts.gov/sites/default/files/bellopn.pdf

WORKERS COMPENSATION: When employee, Tennessee Department

of Transportation highway maintenance worker, sustained compensable
injuries to his right shoulder, left shoulder, and right eye, claims arising from
these injuries resulted in settlements or awards, all of which provided that
employee retained right to reconsideration, employee collapsed while
flagging traffic on 5/24/10, stating that his knees gave out, and employee
filed claim for bilateral knee injuries and petitions for reconsideration of
three previous settlements, evidence did not preponderate against Claims
Commissions findings that employee was not totally disabled and retained
90% permanent disability to both legs; employees retirement was not
voluntary, and he is entitled to have both of his prior injuries to his right and
left shoulder reconsidered, and this issue is remanded for determination of
vocational disability of each claim; prior injury to employees face and
eyebrow is not capable of reconsideration as that claim was not settled based
on any specific findings of vocational disability but state paid lump sum and
agreed to waive its subrogation interest to employees third party action
against tort-feasor. Lewis v. State, 8/8/17, Nashville, Davies, 14 pages.
http://www.tncourts.gov/sites/default/files/williamh.lewis_.wc_.opn_.pdf

CIVIL PROCEDURE: Employers conduct, through its workers

compensation insurance insurer, in erroneously handling employees
claim under Mississippi law and in failing to adhere to Tennessee claim
handling, was sufficient to invoke doctrine of equitable estoppel;
employer is estopped to rely on statute of limitation defense under facts
and circumstances of case; voluntary payments of compensation and
medical treatment occurring after statute of limitation has run do not
extend or revive already expired one-year statute of limitation. Baker v.
Total Air Group LLC, 8/7/17, Jackson, Page, 13 pages.
http://www.tncourts.gov/sites/default/files/bakeropn.pdf

COURT OF APPEALS

TORTS: When plaintiff gave timely written pre-suit notice of her healthcare
liability claim against hospital operated by City of Cookeville and
governmental employee, including required medical authorization, to all
potential defendants, but when she filed her complaint, she failed to provide
copies of medical authorization as required by TCA 29-26-121, record
supports trial courts finding that plaintiff substantially complied with
documentation requirement; documentation requirement of TCA 29-26-
121(b) is not mandatory, and substantial compliance is sufficient, even when
defendant is governmental entity; allowing substantial compliance with
documentation requirement under circumstances presented does not conflict
with courts duty to strictly construe Governmental Tort Liability Act. Clary
v. Miller, 8/8/17, Nashville, McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/clary.sandra.opn_.pdf

TORTS: When minor, by and through his parent and next friend, sued
doctor and hospital for injuries allegedly suffered by minor when his mother
had allergic reaction during labor, and jury found doctor was not negligent
and that nurses employed by hospital were not negligent and dismissed suit,
trial court erred in allowing previously undisclosed testimony of nurses, and
such error was not harmless when it was relevant to central issue of whether
mothers blood pressure was monitored or not; case is remanded for new
trial. Collier v. Roussis, 8/7/17, Knoxville, Swiney, 21 pages.
http://www.tncourts.gov/sites/default/files/collier_v_roussis_m.d._et_al..pdf

TORTS: When plaintiff was inpatient at defendant HealthSouth/Methodist

Rehabilitation Hospital, LP (HealthSouth) recuperating from total knee
replacement, plaintiff had follow-up appointment scheduled with his
orthopedic surgeon, HealthSouth arranged for MedicOne Medical Response
Delta Region, Inc. to transport plaintiff in wheelchair van to appointment
and back to rehabilitation facility, defendant provided plaintiff transportation
by wheelchair van, prior to transport, plaintiff signed exculpatory agreement,
releasing defendant from all claims of ordinary negligence, plaintiff was
injured when he fell while trying to enter van and filed suit for negligence,
trial court properly granted summary judgment, finding that exculpatory
agreement was enforceable when agreement signed by plaintiff was strictly
for non-emergent transportation services, there was no pre-existing
relationship of trust between plaintiff and defendant, and if plaintiff had
refused to sign agreement, plaintiff could simply have called for other
transportation or could have rescheduled his appointment. Copeland v.
HealthSouth/Methodist Rehabilitation Hospital, 8/10/17, Jackson,
Armstrong, 11 pages.
http://www.tncourts.gov/sites/default/files/copelandopn.pdf

TORTS: When former inmate and her husband (claimants) filed complaint
against State of Tennessee, alleging that state employees negligently
supervised and retained prison guard who sexually assaulted inmate, claims
commission erred in determining that it lacked subject matter jurisdiction to
hear claim; claim falls within negligent care, custody and control of
persons category of TCA 9-8-307(a)(1)(E) when inmate alleged that prison
officials knew or should have known that officer posed risk of harm to
female prison inmates and failed to exercise reasonable care to protect
inmates from foreseeable injury; allowing claimants to proceed with their
negligence claim under facts alleged achieves statutory goal of providing
remedy for negligent acts that fall within specified category without holding
state liable for willful, malicious, or criminal acts of state employees; if
claimant cannot prove all elements of her negligence claim, state will not be
held liable even if officer committed sexual assault. Vetrano v. State, 8/8/17,
Nashville, McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/vetrano.donna_.opn_.pdf

DAMAGES: When trial court granted default judgment against defendant

for claims of conversion, unjust enrichment, and malicious prosecution,
immediately after granting default judgment, trial court awarded plaintiff
damages without hearing proof, and defendant filed motion to set aside
default judgment, trial court did not abuse discretion in refusing to set aside
default judgment in light of defendants deliberate decision not to file
response to complaint and his failure to rebut presumption that he received
motion for default judgment; damages claimed for conversion and malicious
prosecution claims are for uncertain amount and are incapable of being
ascertained by fixed formula, and therefore, damages sought for those claims
are unliquidated, and trial court should have required plaintiff to prove
extent of her claimed damages and allowed defendant opportunity to rebut
her evidence or present evidence of his own on question of damages for
those claims before entering final judgment; with respect to damages
claimed for unjust enrichment claim, there are unknown facts that prevent
exact determination of damages complaint contains no information
regarding what percentage of rent each party was responsible for paying,
and, as result, question exists as to this issue and thus, amount of benefit
received by defendant remains uncertain and constitutes unliquidated
damages, and plaintiff must prove extent of her unjust enrichment damages.
Husk v. Thompson, 8/10/17, Nashville, Bennett, 9 pages.
http://www.tncourts.gov/sites/default/files/husk.judith.opn_.pdf

PROPERTY: When dispute arose over control of Church of Firstborn

(church), one group of church members incorporated, individual members of
church filed suit against corporation and second entity that operated school
on church property, and trial court, on cross-motions for summary judgment,
determined that organizational structure of church was connectional or
hierarchical in nature and that all property of church was under control of
churchs board of deacons, genuine issues of material fact preclude entry of
summary judgment; case is remanded for determination of whether church
was hierarchical or congregational. Slagle v. Church of First Born of
Tennessee, 8/7/17, Nashville, McBrayer, 14 pages.
http://www.tncourts.gov/sites/default/files/slagle_v._the_church_of_the_first_bornii.opn_.pdf

FAMILY LAW: Evidence supported termination of mothers parental

rights to her two children on ground of abandonment by failure to establish
suitable home when, although effort expended by Department of Childrens
Services (DCS) to assist mother occurred well into four-month period prior
to filing of termination petition, DCSs efforts in this regard were sufficient;
although mother wishes to chastise DCS for approximate three-month delay
in securing services for her, mother engaged in approximately two-year
delay in making substantial effort to make home livable; given fact that
mother made minimal effort during four-month period preceding filing of
termination petition, and DCS employee testified to multitude of efforts that
DCS made during four months following removal of children from mothers
home even though these efforts largely began in final two months
General Assembly has clearly chosen to confine this courts review not only
to first two months after removal, but four months following removal. In re
Michael B., Jr., 8/11/17, Knoxville, Stafford, 22 pages.
http://www.tncourts.gov/sites/default/files/in_re_michael_b.pdf

FAMILY LAW: Trial court did not err in enforcing its final decree of
divorce by subsequently ordering realtor to be named within 30 days and
ordering that marital home be sold within six months of parties divorce;
trial court did not err in failing to hold husband in contempt for his alleged
use of wifes social security number to open accounts after divorce when
such conduct is not one of grounds for contempt enumerated in TCA 29-9-
102. Portice v. Portice, 8/10/17, Knoxville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/portice_v_portice.pdf

CIVIL PROCEDURE: When decedent fell into elevator shaft in her home
and died as result of her injuries, her estate filed wrongful death action against
Homelift of Nashville, Inc., seller and installer of elevator, and ThyssenKrupp
Access Corporation, alleged successor to manufacturer of elevator, Homelift
filed third party complaint for indemnity against Porta, Inc., alleged
manufacturer of certain interlock devices installed on elevator doors, jury
found both Porta and Homelift at fault but because Homelift was allocated
more than 50% of fault, jury determined that Homelift was not entitled to
indemnification, and Porta filed post-trial motion for attorney fees and
expenses incurred in defending third party action, trial court possessed subject
matter jurisdiction and did not lose jurisdiction as courts judgment was not
final and no appeal had been perfected when Porta made its request for
attorney fees and expenses; Homelift was not on notice that Porta intended to
seek award of attorney fees and expenses at time of trial, and Portas post-trial
motion, raising for first time entitlement to attorney fees under exception to
American Rule, was insufficient to satisfy TRCP 9.07. Homelift of Nashville
Inc. v. Porta Inc., 8/11/17, Nashville, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/homeliftofnashvillev.portainc.opn_.pdf

CIVIL PROCEDURE: In termination of parental rights case, because

mother and father failed to sign their notices of appeal pursuant to TCA 36-
1-124(d), appeal is rendered jurisdictionally deficient, and hence, parents
appeal is dismissed for lack of jurisdiction; second-guessing placement
options with family members is not basis for defeating petition to terminate
parental rights. In re Jayden R., 8/11/17, Nashville, Swiney, dissent by
Bennett, 19 pages.
http://www.tncourts.gov/sites/default/files/inrejaydenr.opn_.pdf
http://www.tncourts.gov/sites/default/files/inrejaydenr.dissent.pdf

CIVIL PROCEDURE: Certificate of service required by TRCP 5.03 is

prima facia evidence that document was served in manner described in
certificate and raises rebuttable presumption that it was received by person
to whom it was sent. In re Ethan R., 8/8/17, Jackson, Dinkins, 13 pages.
http://www.tncourts.gov/sites/default/files/ethanopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant purchased truck from

automobile dealership and gave finance manager at dealership (Hamilton)
down payment for truck in amount of $15,000, check was returned for
insufficient funds, and defendant was convicted of issuing worthless check,
evidence was not sufficient to convict defendant of issuing worthless check;
defendants fraudulent intent was not established when Hamilton knew or
had good and sufficient reason to believe that defendant had insufficient
funds when he requested that Hamilton hold check for two days before
cashing it; TCA 39-14-121(a)(1)(A), which sets forth offense of passing
worthless check, does not apply to a post-dated check or to a check or
similar sight order where the payee or holder knows or has good and
sufficient reason to believe the drawer did not have sufficient funds on
deposit to the drawers credit with the drawee to ensure payment. State v.
Tucker, 8/7/17, Nashville, McMullen, dissent by Easter, 9 pages.
http://www.tncourts.gov/sites/default/files/tucker_bart_leoopn.pdf
http://www.tncourts.gov/sites/default/files/tucker_bart_leodissent.pdf

CRIMINAL PROCEDURE: Evidence was not sufficient to convict

defendant of hindering secured creditor when, based on proof presented,
rational juror could only find beyond reasonable doubt that defendant
knowingly obtained second lien on vehicle, and under TCA 39-14-116, this
does not constitute crime because statute explicitly requires intent to hinder
enforcement lienholder was not engaged in act of repossessing vehicle at
time defendant obtained loan from Tennessee Title Loans (TTL), although
defendant was not forthcoming about lienholder to TTL or county clerks
office, there is no indication that defendant was involved in fraudulent
scheme to prevent lienholder from repossessing collateral or receiving
payment on loan, and testimony at trial indicated that funds were being
withheld from defendants paycheck as repayment of lienholders loan up
until defendants termination and receipt of demand letter in 8/13; bill of
particulars was sufficient because it provided defendant with information
about nature and cause of accusation against him, and even though variance
existed between bill of particulars and proof at trial at trial, there was no
indication that defendant fraudulently obtained title to vehicle as alleged in
bill of particulars, but rather, employee of car dealership committed mistake
that led to lienholder not being listed on title defendant failed to show that
he was prejudiced. State v. Carey, 8/9/17, Knoxville, Easter, 14 pages.
http://www.tncourts.gov/sites/default/files/roy_allen_cary_opinion.pdf

CRIMINAL PROCEDURE: When judgment filed on 9/19/14 reflects that

petitioner received 12-year community corrections sentence, community
corrections violation warrant was issued in 10/16, trial court revoked
petitioners community corrections sentence on 10/26/16 and ordered that he
serve remainder of his 12-year sentence in Department of Correction, and
petitioner filed petition for post-conviction relief on 12/12/16 alleging that
he received ineffective assistance of counsel in community corrections
revocation proceedings, post-conviction court erred in summarily dismissing
petition; trial court need not resentence defendant, i.e., extend length of
defendants sentence, upon revoking defendants community corrections
sentence for defendant to have right to file post-conviction petition. Bostic v.
State, 8/9/17, Nashville, Montgomery, 2 pages.
http://www.tncourts.gov/sites/default/files/bostic_james_edward_jropn.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: In case in which petitioner was convicted of

murder and sentenced to death, district court did not err in denying, under
applicable standard set forth by Tennessee Supreme Court in Coleman v.
State, 341 SW3d 221 (Tenn. 2011), petitioners federal habeas corpus claim,
brought under Atkins v. Virginia, 536 US 304 (2002), that his mental
retardation precluded imposition of death penalty; without stronger evidence
that petitioners childhood IQ scores (83, 97, 92, 91, and 83) did not
accurately reflect his intellectual functioning before he turned 18, district
court properly held that petitioner could not carry his burden of showing, by
preponderance of evidence, that he had significantly subaverage general
intellectual functioning before he turned 18; district court elected to
disregard most recent evidence of petitioners mental ability because district
court was not persuaded that any injury that might have caused mental
retardation had occurred before petitioner turned 18; principles of summary
judgment do not apply to merits ruling on federal habeas corpus claim.
Black v. Carpenter, 8/10/17, Boggs, concurrence by Cole, 22 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0174p-06.pdf

TRIAL COURTS

COMMERCIAL LAW: In suit filed by importer of Nissan automobiles

(plaintiff) who entered into Nissan Dealer Term Sales & Service Agreement
with dealerships, which agreement includes performing customer warranty
repair work for which dealer submits claims to plaintiff for payment for
work, asserting that dealerships former part and service director (defendant)
submitted false, fictitious, and fabricated warranty repair claims for repairs
either not performed or not needed, plaintiff is awarded compensatory
damages of $6,448,088 for 21-month period extending from 8/13 through
4/15 for defendants violation of Tennessee Consumer Protection Act
(TCPA) and commission of fraud; 8% interest in amount of $1,480,481 is
awarded; plaintiff is awarded under TCA 47-18-109(a)(4), two times
compensatory damages for total of $12,896,176, or, alternatively, punitive
damages of two times compensatory damages for total of $12,896,176;
plaintiff must file election of enhanced damages under TCPA or punitive
damages. Nissan North America Inc. v. Tustin Import Auto Sales LLC,
5/23/17, Davidson Chancery, Lyle, 20 pages.
https://www.tncourts.gov/node/4870440

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, custodian at

university, fell down seven concrete steps while walking from one campus
building to another and struck her head on railing post at bottom of stairs,
employers contention that employees injuries were result of idiopathic fall
is without merit; injuries caused by fall down staircase are not equivalent of
unexplained fall on level ground, and even setting aside question of stairs
themselves, employee struck her head on stair railing post, which is clear
hazard peculiar to area she had to traverse as part of her job duties;
temporary permanent disability benefits were foreclosed by employees
retirement, which was unrelated to her injuries, as it is possible that
university would have been able to provide some level of restricted work
had employee still been employee and her retirement deprived university of
opportunity to do so. Jackson v. University of the South, 5/26/17,
Murfreesboro, Tipps, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1817&context=utk_workerscomp

WORKERS COMPENSATION: When employer did not provide employee

panel of physicians employer simply offered Dr. Berry arguing that [d]ue
to the unremarkable x-rays at the emergency room, no panel of physicians was
provided, as it was not clear at that time that further treatment would be
needed, such decision is neither employers prerogative nor applicable
standard; employee expressed a need for medical care after emergency room
visit and, at that point, employer became obligated to provide her panel; when
Berry made referral to Dr. Chandler, employer did not offer panel of
orthopedic specialists, arguing it accepted Chandler after it was determined
that an orthopedic physician was necessary, but because Chandler was not
selected by employee from panel, Chandlers opinion that employee needs no
further treatment from orthopedic standpoint is entitled to no presumption of
correctness; employer contends employee must return to Chandler if she wants
further orthopedic treatment, but Chandler did not offer employee further
treatment and Berry deems employees complaints serious enough to warrant
further evaluation, so, under circumstances, it is appropriate to order employer
to approve Berrys referral to Tennessee Orthopedic Alliance for evaluation
and provision of reasonable and necessary treatment of her shoulder injury;
because employer never provided panel of physicians to employee after she
reported her injury, case is referred to Penalty Unit for its consideration of
assessment of penalty for employers failure to timely provide employee panel
of physicians. Jacks v. Camden Healthcare/Northpoint Senior Services LLC,
5/25/17, Jackson, Phillips, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1814&context=utk_workerscomp

REVENUE RULING

TAXATION: Taxpayers customers that are manufacturers must present

separate sales and use tax exemption certificates for each manufacturing
location. Department of Revenue Letter Ruling 17-10, 7/5/17, 5 pages.
http://www.tn.gov/assets/entities/revenue/attachments/17-10.pdf
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