Anda di halaman 1dari 5

TAM-BYTES

May 26, 2014


Vol. 17, No. 21
2014 TAM CLE CALENDAR
Webinars
Common Probate Problems Facing Tennessee Attorneys, 60-minute webinar
presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday,
June 11, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Search and Seizure: History and Update on Fourth Amendment Law, 60-
minute webinar presented by Lara McCauley Alvis, Birmingham attorney, on
Thursday, June 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Tennessee Workers Compensation: Are You Ready for the July 1
st
Changes?,
60-minute webinar presented by Pele Houk Godkin, Nashville attorney, on
Tuesday, June 24, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Preparing Clients for Depositions in Tennessee: A Step-by-Step Process, 60-
minute webinar presented by Burke Keaty, Brentwood attorney, on Tuesday, June
24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court, in case in which trial counsel failed to appeal petitioners third
sentencing order, holds that petitioner failed to prove that he did not know of
his right to appeal or that he otherwise did not waive that right, and that trial
counsels failure to file written waiver of appeal was not per se deficient
performance but was fact properly considered by trial court on issue of
whether counsel rendered effective representation;
Court of Appeals rules that when complaint was filed before effective date of
TCA 29-26-122, defendant doctor asserted comparative fault of second doctor
in answer, and plaintiff amended complaint to add second doctor as defendant
after effective date of statute, requirement that plaintiff file certificate of good
faith with amended complaint did not apply;
Court of Appeals reverses grant of summary judgment in favor of railroad,
based on release executed by employee in previous litigation, in suit under
Federal Employers Liability Act alleging that employee was exposed to toxic
substances during his employment with railroad and that such exposure led to
his death from mesothelioma;
Court of Criminal Appeals rules that although persistent offender provision in
TCA 40-35-107(a)(1) general provision that defines persistent offender as
defendant who has received five (5) or more prior felony convictions but
does not limit defendants current conviction to specific felony class conflicts
with career offender provision in TCA 40-35-108(a)(3) which specifically
relates to defendant convicted of Class D or E felony more specific provision
in TCA 40-35-108(a)(3) controls; and
Sixth Circuit affirms grant of summary judgment to defendant in case in which
plaintiffs alleged that defendants failure to clear ice from parking area in
office park contributed to plaintiff slipping on patch of black ice.


SUPREME COURT

CRIMINAL PROCEDURE: In case in which petitioner pled guilty to two counts of
vehicular homicide and was sentenced to effective term of 24 years, petitioner twice
appealed sentence to Court of Criminal Appeals, which twice remanded case to trial
court for resentencing each time, trial court imposed 24-year sentence petitioner
did not appeal third sentencing order, and trial counsel did not file TRCrP 37(d)(2)
waiver of appeal, petitioner later filed petition for post-conviction relief, alleging that
trial counsel was ineffective by failing to appeal third sentencing order, and post-
conviction court dismissed petition, holding that petitioner knew of his right to appeal
and waived that right, petitioner failed to prove by clear and convincing evidence that
he did not know of his right to appeal or that he otherwise did not waive that right;
trial counsels failure to file written waiver of appeal was not per se deficient
performance, but was fact properly considered by trial court on issue of whether trial
counsel rendered effective representation. Arroyo v. State, 5/21/14, Knoxville, Lee,
dissent by Wade, 11 pages.
http://www.tncourts.gov/sites/default/files/arroyoguadalupe.opn_1.pdf
http://www.tncourts.gov/sites/default/files/arroyoguadalupedis_1.pdf


COURT OF APPEALS

TORTS: When plaintiff filed health care liability action on 2/1/08 against hospital
and doctor, doctor filed answer on 9/3/08 and moved to amend answer on 10/2/08 to
assert comparative fault of second doctor and his medical group, plaintiff filed
amended complaint adding second doctor and his medical group as defendants, and
second doctor filed motion to strike allegations of fault in amended answer and in
amended complaint and to dismiss amended complaint because allegations were not
supported by certificate of good faith, trial court properly denied second doctors
motion; there is nothing in TCA 20-1-119(a)(1) or TRCP 15 which would treat
amended complaint as new action for any purpose; claim against second doctor in
amended complaint arose out of same conduct set forth in original complaint, by
operation of TRCP 15.02, allegations of amended complaint and claims stated
therein relate back to date of original complaint, 2/1/08, which was prior to
effective date of TCA 29-26-122, and hence, requirement of statute that plaintiff file
certificate of good faith with amended complaint is not applicable in this case.
Rogers v. J ackson, 5/19/14, MS, Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/rogersgcopn.pdf

WORKERS COMPENSATION: In suit under Federal Employers Liability Act
alleging that employee was exposed to toxic substances, including asbestos and other
chemicals, during his employment with railroad and that such exposure led to his
death from mesothelioma, trial court erred in granting railroads motion for summary
judgment based on release which employee had executed when he settled previous
litigation with railroad; limited record does not contain evidence sufficient to
demonstrate, conclusively, that employee understood that he was at risk of
developing mesothelioma at time release was signed when only evidence railroad
submitted on issue was boilerplate release itself, which contains terms
mesothelioma and asbestos buried in laundry list of other conditions and
substances, railroad did not demonstrate that plaintiff cannot prove invalidity of
release at trial or cannot prove that employee was not aware of risk of mesothelioma
when he signed release. Blackmon v. Illinois Central Railroad Co., 5/16/14, WS,
Highers, 23 pages.
http://www.tncourts.gov/sites/default/files/blackmondeloresopn.pdf

COMMERCIAL LAW: When defendants hired plaintiff to assist in sale of all or
part of their small business, parties agreement provided that if defendants entered
transaction with any entity that plaintiff solicited on their behalf within certain time
period, they would be obligated to pay plaintiff percentage of purchase price, during
stated time period, defendants sold all of their businesss assets to third party
company that also hired them as at-will employees, defendants refused plaintiffs
demand for commission for sale, and plaintiff filed suit claiming damages for breach
of contract, promissory estoppel, and unjust enrichment, trial court erred in granting
summary judgment to defendants on basis that there were no genuine disputes of
material fact because transaction between defendants and third party was not type of
transaction defendants hired plaintiff to arrange; considering evidence presented in
light most favorable to plaintiff, plaintiff demonstrated existence of disputed material
fact as to whether third party purchased defendants business as going concern.
McI llwain v. Hoover, 5/19/14, WS at Nashville, Farmer, 9 pages.
http://www.tncourts.gov/sites/default/files/mcillwainscott.opn_.pdf

FAMILY LAW: TCA 37-1-104(f) provides that juvenile court has concurrent
jurisdiction with circuit and chancery court to establish paternity of non-marital child
and to determine all issues regarding care and control of child born out of wedlock,
including custody, visitation, support, education or any other issue. I n re Donovyn
B.H., 5/16/14, WS, Farmer, 4 pages.
http://www.tncourts.gov/sites/default/files/donovynbhopn.pdf

FAMILY LAW: Trial court abused discretion in awarding wife alimony of only
$700 per month for 48 months when wife was not capable of economic rehabilitation
wife lacked experience and skills necessary to maintain household without long-
term support; wife is entitled to award of alimony in futuro of $1,000 per month until
her death or remarriage. Fogle v. Fogle, 5/22/14, ES, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/fogleopn.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of two counts of
soliciting sexual exploitation of minor when defendant began giving victim money if
she allowed him to look at her in her bra and underwear, defendant encouraged
victim to be more revealing by paying her more money if she wore more provocative
undergarments, and victim detailed two incidents that resulted in her revealing her
breasts to defendant -- defendant offered victim even more money if she would
remove her underwear or reveal her breasts to him. State v. Ritchie, 5/19/14,
Knoxville, McMullen, 7 pages.
http://www.tncourts.gov/sites/default/files/ritchieleslieopn.pdf

CRIMINAL PROCEDURE: Trial court did not err in denying defendants request
for jury instruction regarding states duty to collect and preserve evidence when
defendant made no allegation that state lost or destroyed any piece of evidence, but
instead argued that state should have collected more evidence because that evidence
might have been exculpatory such is not standard required for giving of instruction
under State v. Ferguson, 2 SW3d 912 (1999). State v. Bufford, 5/20/14, Jackson,
Witt, 16 pages.
http://www.tncourts.gov/sites/default/files/buffordcordellopn.pdf

CRIMINAL SENTENCING: Trial court erred in finding defendant to be persistent,
rather than career, offender when defendant pled guilty to two Class D felonies and
one Class E felony and conceded to having six prior felony convictions; although
persistent offender provision in TCA 40-35-107(a)(1) which is general provision
that defines persistent offender as defendant who has received five (5) or more
prior felony convictions and does not limit defendants current conviction to specific
felony class conflicts with career offender provision in TCA 40-35-108(a)(3)
which specifically relates to defendant convicted of Class D or E felony more
specific provision in TCA 40-35-108(a)(3) controls, and trial court erred in
sentencing defendant as persistent, rather than career, offender. State v. Borum,
5/15/14, Jackson, Glenn, 7 pages.
http://www.tncourts.gov/sites/default/files/borumterenceopn.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: In case in which plaintiffs alleged that defendants failure to clear ice from
parking area in office park contributed to plaintiff slipping on patch of black ice and
injuring his hand, district court properly granted defendant summary judgment; it was
not unreasonable for defendant to fail to remove patch of ice from parking area in
early morning hours when there had been very little recent precipitation prior to
accident, plaintiff did not see or experience any accumulation when driving onto
parking lot, no party was aware of any dangerous conditions before accident,
defendant was responsible for large area, and incident occurred three hours before
maintenance crew normally reported for work; case presents one of those rare
instances in which determination of reasonableness of defendants failure to remedy
winter-weather condition that is among the normal hazards of life can be made
confidently without submission of matter to jury. Barbaglia v. Nonconnah Holdings
LLC, 5/20/14, Daughtrey, 6 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0379n-06.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