TAM-BYTES April 15, 2013 Vol. 16, No.

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2013 CLE CALENDAR Audio Conference Earn one hour of DUAL credit! Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls, 60minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern) Creditors Rights in Tennessee: 10 Collection Strategies, 60-minute audio conference presented by David Anthony, Nasville attorney, on Thursday, June 6 at 10 a.m. (Central), 11 a.m. (Eastern). Dividing Specialty Retirement Plans: A Primer for Tennessee Attorneys, 60-minute webinar presented by James D. Helton, Brentwood attorney, on Thursday, June 6 at 2 p.m. (Central), 3 p.m. (Eastern).

Onsite Event Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com IN THIS WEEKS TAM-Bytes Workers Comp Panel affirms trial courts refusal to apply last injurious injury rule in case in which hair stylist, after being terminated by defendant employer, worked for subsequent employers but work was less strenuous she cut hair of two to three clients per week as opposed to cutting hair of 20 to 30 clients per day when employed by defendant;

 Court of Appeals affirms trial courts finding that plaintiffs expert, who engaged in practice of emergency medicine, was not qualified to testify as expert in case in which plaintiffs contended that defendant pediatricians were negligent in failing to order or perform additional tests to determine cause of childs hyperbilirubinemia, failing to treat childs jaundice, and failing to refer child for further tests for bilirubin levels; Court of Appeals, in reversing denial of claim for unemployment compensation benefits, rules explosive event in which claimants supervisor used very offensive language and screamed at claimant in front of other employees constituted good cause for claimant to voluntarily quit; Court of Appeals reiterates that when transfer of custody of child is merely temporary, it is unnecessary to apply material change of circumstances analysis; Court of Appeals says trial court erred in designating father as childs primary residential parent based on fact that father was awarded marital residence, which provides stability for child, when trial court failed to make any findings concerning wealth of evidence of physical and emotional abuse by father; and U.S. Supreme Court holds costs may be awarded to prevailing defendants in Fair Debt Collection Practices Act cases without finding that plaintiff brought case in bad faith and for the purpose of harassment.

WORKERS COMP PANEL WORKERS COMPENSATION: Employees recovery was not barred by TCA 50-6-201 when employee presented reasonable excuse for one-day delay in giving notice of her claim employee first learned that her injury was workrelated in her first post-operative visit with doctor on 8/23/10, after consultation with doctor, employee sought legal representation but lawyer with whom she consulted declined to represent her approximately one week later, employee then hired her attorney who prepared letter and had employee hand-deliver notice of injury that same day and employer demonstrated no prejudice; statute of limitation began to run when doctor diagnosed employee with work-related neck injury; evidence did not preponderate against trial courts finding that employer should not be relieved of its responsibility for workers compensation benefits by operation of last injurious injury rule when employee worked for defendant employer from 1996 to 8/12/09, often cutting 20 to 30 clients hair per day and when her work for subsequent employers was much less strenuous with employee cutting hair of two to three clients per week; evidence did not preponderate against trial courts decision to apply lower cap to employees disability award

when employee was terminated after disagreement with customer concerning amount employee charged for haircut. Ingram v. Heads Up Hair Cutting Center, 4/10/13, Nashville, Lee, 11 pages.
http://www.tncourts.gov/sites/default/files/ingrampamela_opnjo.pdf

WORKERS COMPENSATION: In case in which employee alleged that he sustained compensable injury to his lower back while using sledge hammer and employer asserted that injury employee suffered one year earlier in similar manner was cause of employees symptoms and need for additional medical treatment, evidence did not preponderate against trial courts finding that employee sustained new, compensable injury in 1/08 that caused permanent disability in addition to that caused by his 2/07 injury; although trial court has discretion to award costs, trial court abuses discretion when it fails to properly consider factors customarily used to guide particular discretionary decision; trial court abused discretion in declining to award each of costs sought by employee when employer did not object to any of costs associated with either of depositions, and trial court provided no explanation for its decision to deny costs in its order. Carrigan v. Davenport Towing & Recovery Services LLC, 4/11/13, Jackson, Childress, 13 pages.
http://www.tncourts.gov/sites/default/files/carriganopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that 10/08 work injury significantly advanced severity of employees pre-existing back condition; evidence did not preponderate against trial courts finding that employee sustained 80% permanent disability solely as result of 10/08 accident and its consequent apportionment of permanent disability award between employer and Second Injury Fund. Bohannon v. Expedited Transport Associates Inc., 4/10/13, Nashville, Harris, 11 pages.
http://www.tncourts.gov/sites/default/files/bohannoncarl_opnjo.pdf

WORKERS COMPENSATION: Evidence did not preponderate against award of 40% vocational disability for work-related hearing loss when employee continued to work for employer, although his hearing loss did not prevent him from performing job he had performed since 1998 and he was able to work overtime when overtime was offered, employee testified that he had difficulty hearing forklifts in workplace and that his co-workers have trouble getting his attention, and employee has difficulty hearing television and communicating with his wife. Perry v. Lennox Hearth Products, 4/11/13, Jackson, Holder, 9 pages.
http://www.tncourts.gov/sites/default/files/perryjopn.pdf

WORKERS COMPENSATION: In dispute over post-settlement medical care, evidence did not preponderate against trial courts decision to give greater weight

to treating physicians opinion that employees asthma was caused by his exposure to workplace fumes and is permanent condition; there was insufficient evidence to prove that employees cigarette smoking after 2010 settlement was cause of his current need for medical treatment. Grier v. Alstom Power Inc., 4/10/13, Knoxville, Lee, 7 pages.
http://www.tncourts.gov/sites/default/files/griervalstompoweropn.pdf

COURT OF APPEALS TORTS: In medical malpractice case in which plaintiffs contended that defendant pediatricians were negligent in failing to order or perform additional tests to determine cause of childs hyperbilirubinemia, failing to treat childs jaundice, failing to inform parents about childs condition, and failing to refer child for further tests for bilirubin levels following her hospitalization, trial court did not err in finding that plaintiffs expert, who was engaged in practice of emergency medicine, was not qualified to testify as expert in case; although specialization is not prerequisite to ability of doctor to offer expert testimony, purported expert must, nonetheless, have practiced in area that would allow him or her to testify expertly concerning specific issues raised in suit; there was no evidence to support finding that plaintiffs expert had current or recent expertise in field of jaundice, bilirubin metabolism, bilirubin encephalopathy, or standard of care under American Academy of Pediatrics Guidelines for jaundice such that his testimony would aid trier of fact in determination of whether defendants deviated from applicable standard of care. Mitchell v. Jackson Clinic P.A., 4/9/13, WS, Stafford, 17 pages.
http://www.tncourts.gov/sites/default/files/mitchellsopn.pdf

TORTS: Trial court properly dismissed legal malpractice suit based on statute of limitation when conduct asserted by plaintiff to be negligent was attorneys failure to timely file QDROs as provided in plaintiffs marital dissolution agreement as incorporated into divorce decree, plaintiff asserted that, as result of alleged negligence, she incurred loss of annual income for two years from pension fund and losses resulting from decrease in value of assets held in 401k plan, and plaintiff filed her suit more than 16 months after she had actual knowledge that QDROs had not been filed and more than one year after entry of final decree of divorce. Pier v. Jungkind, 4/8/13, WS, Farmer, 8 pages.
http://www.tncourts.gov/sites/default/files/pierfrancescamariaopn.pdf

EMPLOYMENT: In case in which Department of Labor and Workforce Development denied claimants initial claim for unemployment upon finding that claimant voluntarily left his most recent work, that he quit due to alleged verbal

abuse from his supervisor, and that he did not speak with anyone about alleged verbal abuse before he walked out, trial court erred in upholding decision of commissioners designee denying unemployment compensation benefits; one isolated incident may constitute good cause for voluntarily quitting job; given entirety of circumstances to which claimant testified claimant testified to explosive event in which his supervisor used very offensive language, screamed at him in front of other employees and followed claimant to front of warehouse screaming and hollering all way, and event was condoned by inaction of owner who witnessed it and did nothing and fact that claimants testimony about incident was totally unrebutted, good cause existed for claimant to voluntarily quit. Ensey v. Davis, 4/10/13, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/enseyk_opn.pdf

COMMERCIAL LAW: In case in which plaintiff doctor filed suit against seller of medical equipment for refund of purchase price of equipment, BAX3000 Allergy Relief System, pursuant to money back guarantee, and seller counterclaimed for attorney fees and litigation costs pursuant to separate purchase agreement, trial court properly granted seller summary judgment when doctor signed guarantee which required that he survey each patient in order to receive refund, and doctors assertion that he added BAX3000 to his marketing materials and surveyed only patients who suffered from allergies was not sufficient to meet condition precedent as agreed to by parties; seller was not entitled to attorney fees and litigation costs when guarantee and purchase agreement were not integral parts of same transaction and guarantee contained no provision allowing for collection of attorney fees and litigation costs by prevailing party. Saeedpour v. Virtual Medical Solutions LLC, 4/5/13, MS, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/saeedpour_v._virtual_med_opinion.pdf

COMMERCIAL LAW: When general contractor filed breach of contract suit against homeowners, alleging homeowners failed to pay invoices on extensive home renovation project, and homeowners filed counterclaims for breach of contract and violation of Tennessee Consumer Protection Act (TCPA) against general contractor and its owner, in his individual capacity, who contractually agreed to supervise project for additional fee, trial court properly granted homeowners summary judgment on breach of contract claim when homeowners alleged that general contractor failed to use workmanlike practices and provided long list of defects with work, and general contractor failed to submit any proof to rebut homeowners evidence; award of damages against owner for breach of contract was not appropriate at summary judgment stage as fact that owner breached his duty to properly supervise does not establish amount of damages resulting from his breach that are different from or additional to damages

resulting from general contractors breach of contract for its substandard work; trial court erred in granting homeowners summary judgment on their TCPA claim against general contractor and owner when there was insufficient proof to establish that general contractor used unfair or deceptive acts or practices and affidavit submitted by homeowners only detailed defects in work. Brewer v. Kitchen Designs & Cabinetry, 4/5/13, MS, Clement, 16 pages.
http://www.tncourts.gov/sites/default/files/brewerm_opn.pdf

COMMERCIAL LAW: In suit to recover rent due and owing under lease in which corporation was named as tenant, trial court properly held that defendant individuals signature on lease rendered him personally liable; when, in space provided for tenants name and signature, individual printed his name, and, on line preceded by word By, signed his name, there was clear and unambiguous designation of individual as tenant on lease; when trial court gave no explanation for decision not to award interest on judgment from and after expiration of lease term, case is remanded for trial court to consider further whether such award was proper. Mudd v. Goostree, 4/5/13, MS, Dinkins, 4 pages.
http://www.tncourts.gov/sites/default/files/mudd_v._goostree_opinion.pdf

ESTATES & TRUSTS: When decedent died on 6/22/91, decedents stepdaughter became sole personal representative and executor of decedents estate, will was admitted to probate in 7/91 but personal representative did not file her first accounting until 2009, final accounting, which was filed in 2/10, revealed that estate had paid approximately $350,000 toward remediation of soil contamination caused by underground petroleum storage tanks (on parcel of land decedents husband conveyed before his death to family trust), will left portion of decedents residuary estate to charitable trust, and charitable trust and state attorney general objected to final accounting on ground that remediation payments were not proper expense of estate, and trial court approved final accounting, there was no allowable claim against estate so belated court approval of expenditures of estate for benefit of family trust cannot stand; evidence preponderated against trial courts finding that administrator, who made agreement on behalf of hospital that estate would be responsible for cost of remediation, was trustee of hospital and endowment fund; even if there had been claim or legitimate basis for claim, will did not expressly or, by incorporation of TCA 35-50-110, give personal representative power to enter into contracts on behalf of estate, settle or compromise claims or demands, or abate environmental hazards on property of estate. In re Estate of Ledford, 4/11/13, ES, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/ledfordhn.pdf

FAMILY LAW: In case in which father was designated as primary residential parent of parties five children at time of parties divorce, mother filed petition seeking to modify parenting plan and for emergency custody of children based on

allegations of violence involving father, trial court found emergency had arisen and awarded temporary emergency custody of children to mother, and later, after hearing, trial court entered order restoring custody to father after stating that emergency had been removed by [Father], trial courts finding was sufficient to restore fathers custody of children; when transfer of custody is merely temporary, it is unnecessary to apply material change of circumstances analysis. Marquez v. Marquez, 4/11/13, ES, Swiney, 5 pages.
http://www.tncourts.gov/sites/default/files/marquezssopn.pdf

FAMILY LAW: Evidence preponderated against trial courts designation of father as childs primary residential parent based on fact that father was awarded marital residence, which provides stability for child, when trial court failed to make any findings concerning wealth of evidence of physical and emotional abuse by father, some of which father admitted, and father was abusive of mother, sometimes in childs presence; case is remanded with instructions for trial court to designate mother as childs primary residential parent and establish new parenting plan for parties; evidence preponderated against award to father of 74% of equity in marital residence, resulting in award of 68% of marital estate to father, when mother started working in 2006 and both parties worked full-time until 2009, when father was laid off, father then stayed home and cared for parties child during day, while mother was familys primary wage earner, neither party came into marriage with significant marital property or leaves marriage with any significant separate property, and father had only $12,000 of equity in residence when parties married and each spouse contributed substantially to paying off entire mortgage; case is remanded with instructions to trial court to award mother $97,200, or 45% of value of marital residence, for her share of marital residence, in addition to personal property she was previously awarded with this modification, mother will receive marital assets totaling $121,390, while father will receive assets totaling $126,450. Jacobsen v. Jacobsen, 4/5/13, MS, Clement, 14 pages.
http://www.tncourts.gov/sites/default/files/jacobsenj_opn.pdf

FAMILY LAW: In divorce case in which wife sought to have husband held in criminal contempt for repaying loans to his parents in violation of trial courts 2009 order, because order failed to expressly and precisely spell out which loans father was forbidden from repaying to his parents, it was not unreasonable for father to assume that certain loans, i.e., those made after 4/3/09 father acquired loans from his parents after 4/3/09 during time in which he was unemployed, and he used these funds to pay for living expenses, attorney fees, and health insurance premiums for mother and children were not contemplated within language that parties agreed upon in 2009; vague and ambiguous orders cannot support finding of criminal contempt. Beyer v. Beyer, 4/5/13, WS, Farmer, 30 pages.
http://www.tncourts.gov/sites/default/files/beyerdesireemopn.pdf

CIVIL PROCEDURE: In case in which plaintiff filed suit against his mother (defendant) in connection with dispute involving family-owned business, throughout trial, defendant maintained that she was appearing without benefit of counsel, but it became apparent that licensed attorneys, including Bass, assisted defendant in drafting documents and preparing her trial strategy, and plaintiff alleged that Basss actions were contemptuous in that she had exhibited willful misbehavior, trial court did not err in dismissing plaintiffs criminal contempt petition; although Basss conduct may be characterized as unethical in that she failed to ensure that her legal assistance was recognized by trial court, plaintiff failed to set forth sufficient facts to establish that her conduct rose to level of criminal contempt; aiding unrepresented person in limited advisory capacity does not obstruct administration of justice. Green v. Champs-Elysees Inc., 4/9/13, ES at Nashville, McClarty, 7 pages.
http://www.tncourts.gov/sites/default/files/greenjohn_opn.pdf

CIVIL PROCEDURE: In personal injury cases against Bridgestone/Firestone, Inc., and Ford Motor Company which were remanded by appellate court for hearing on issue of whether dismissals in Mexico took place in spite of plaintiffs good faith efforts or, rather, occurred because of plaintiffs manipulation of cases in order to secure dismissals in Mexico and thereby have excuse to refile in Tennessee, trial court did not abuse discretion in dismissing Ramirez and Flores cases based on plaintiffs failure to disclose that Ramirez case was dismissed for procedural deficiencies before it was dismissed for lack of jurisdiction and that Flores case was accepted for jurisdiction in Xalapa, Mexico, and immediately voluntarily dismissed and refiled in Veracrux, Mexico; trial court did not commit reversible error in dismissing FR 480 tire cases. Ramirez v. Bridgestone/Firestone Inc., 4/4/13, ES at Nashville, Susano, 21 pages.
http://www.tncourts.gov/sites/default/files/ramirezd_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In murder case, trial judge did not abuse discretion in allowing TBI agent to use shotgun obtained from TBIs collection and modified by him in demonstration of how shotgun is broken and loaded and how sawed-off shotgun might be concealed in backpack when shotgun was admitted for demonstrative purposes only, trial judge instructed jury that shotgun was not used in shooting and was to be used only for demonstrative purposes, and demonstration was relevant to elements of intent and premeditation and would assist trier of fact in understanding TBI agents testimony. State v. Grasty, 4/10/13, Knoxville, Page, 13 pages.
http://www.tncourts.gov/sites/default/files/grastyquinzellopn.pdf

U.S. SUPREME COURT COMMERCIAL LAW: In suit brought pursuant to Fair Debt Collection Practices Act (FDCP) in which district court awarded defendant costs pursuant to FRCP 54(d)(1), which gives district courts discretion to award costs to prevailing parties unless statute provides otherwise, 15 USC 1692k(a)(3) of FDCPA is not contrary to, and thus does not displace, district courts discretion to award costs under FRCP 54(d)(1); language in Section 1692k(a)(3), which states that [o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs, does not provid[e] otherwise than FRCP 54(d)(1) and thus, costs may be awarded to prevailing defendants in FDCPA cases without finding that plaintiff brought case in bad faith and for the purpose of harassment. Marx v. General Revenue Corp., 2/26/13, Thomas, dissent by Sotomayor, 7-2, 29 pages.
http://www.supremecourt.gov/opinions/12pdf/11-1175_4fc5.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 email 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/