TAM-BYTES

January 5, 2015
Vol. 18, No. 1
2014 TAM CLE CALENDAR

Webinar
Where Family Law and International Issues Collide: Relocation and
Child Abduction Issues, 60-minute webinar presented by Rebecca
McKelvey Castaneda, with Stites & Harbison in Nashville, on Wednesday,
February 25, 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

Workers Comp Panel reverses trial courts decision requiring employer
to provide new panel of pain management physicians closer to
employees residence after employee moved 162 miles away;
Court of Appeals rules probate court did not abuse discretion in denying
personal representatives motion to resign and appoint his attorney to
replace him; and
Court of Criminal Appeals considers authority of police officer to stop
and arrest alleged perpetrator outside of officers jurisdiction.
WORKERS COMP PANEL
WORKERS COMPENSATION: When 2010 settlement of 2007 workers
comp claim enabled employee to continue receiving pain management
treatment from physician (Dr. Hazlewood) in Lebanon, employee moved to
Vonore in late 2012, because his pain management physician was now 162
miles away, employee requested employer to provide new panel of pain
management physicians closer to his new residence, employer declined, citing
TCA 50-6-204(j)(2)(A) that exempts pain management physicians who live
within 175 miles of employee from general statutory community residence
requirement, and employee filed motion to compel employer to provide new

doctor, trial court erred in ordering employer to provide new panel of pain
management physicians; legislature intended to exempt pain management
physicians from TCA 50-6-204(a)(4)(A)s community rule and to require
only that pain management physicians offices be within 175 miles of
employees residence or place of employment; employee contended that his
claim was settled before 7/1/12 effective date of TCA 50-6-204(j)(2)(A), but
statute is triggered only when there is referral to pain management specialist,
and employee requested new pain management specialist in 1/13, after statute
had taken effect; TCA 50-6-204(j)(2) requires employer to supply employee
with panel of pain management physicians within 175 miles of employees
residence or place of employment, employer exercised its statutory right to
designate three physicians, employee selected Hazlewood whose office is
within 175 miles of employees home, and that arrangement complied with law
in existence when employees injury occurred and with law in effect after
7/1/12; nothing prevents employer from providing employee with new pain
management physician closer to his home, but employer may not wish to do so,
and nothing in statute requires employer to produce new panel at this juncture.
Patterson v. Prime Package & Label Co., 12/22/14, Nashville, Koch, 10 pages.
http://www.tncourts.gov/sites/default/files/pattersonj_opnjo.pdf

COURT OF APPEALS
ESTATES & TRUSTS: Probate court did not abuse discretion in denying
personal representatives motion to resign and appoint his attorney to replace
him; at best, personal representatives request to resign was honest, though
misinformed, attempt to act in estates best interest, and, at worse, it was
subversive attempt to position estate to further waste judicial resources by
initiating new lawsuits challenging validity of perpetual trust in either event,
personal representatives justification for resignation did not compel probate
court to accept resignation; when probate court granted personal representatives
request to be appointed estates personal representative, it did so with
understanding that personal representative would deal with estate in utmost good
faith. In re Estate of Goza, 12/19/14, MS at Jackson, Gibson, 10 pages.
http://www.tncourts.gov/sites/default/files/gozajohnj00678opn.pdf

FAMILY LAW: In case in which mother filed motion to clarify conflicting

provisions regarding residential co-parenting schedule in parties agreed
permanent parenting plan approximately five weeks after entry of permanent
parenting plan order, trial court properly treated mothers motion for
clarification as TRCP 60.01 motion; trial courts order, finding in favor of
mothers interpretation of parties intent when order was submitted, operated

as clarification of ambiguous and contradictory provision in permanent

parenting plan, rather than modification of plan; because trial court failed to
hold evidentiary hearing to determine parties intent at time agreed permanent
parenting plan was entered, trial courts judgment is vacated and case is
remanded for evidentiary hearing with subsequent clarification of ambiguous
provision at issue. Howard v. Halford, 12/22/14, ES, Frierson, 7 pages.
http://www.tncourts.gov/sites/default/files/howard_opinion_final.pdf

FAMILY LAW: Evidence did not preponderate against trial courts division of
parties marital assets when wife received approximately 60% of marital estate,
husband received approximately 40%, trial court determined that wifes
contributions had substantially increased the marital estate, while husbands
had not, and trial court charged husband with $200,000 in monies that he
dissipated from marital estate. Dunn v. Dunn, 12/22/14, ES, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/dunn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In first degree murder case, evidence supported jurys
rejection of defendants insanity defense when both experts (Dr. Montgomery
and Dr. Engum) were well-qualified in their respective fields of forensic
psychiatry and forensic psychology, and both were qualified to give their
opinions as to whether defendant could appreciate nature and wrongfulness of
his conduct; Engums testimony, along with evidence regarding defendants
behavior before and after murder, was sufficient to rebut Montgomerys
opinion that defendant did not understand nature and wrongfulness of his
conduct. State v. Colvett, 12/19/14, Nashville, Thomas, 43 pages.
http://www.tncourts.gov/sites/default/files/colvettkennethopn.pdf

CRIMINAL PROCEDURE: When police officer is in pursuit of vehicle

within his or her jurisdiction, officer is authorized to stop vehicle after it
crosses into another county, but when officer effectuates arrest of alleged
perpetrator outside of jurisdiction of his law enforcement agency, he or she is
legally authorized to do so if arrest is one private citizen would be authorized
to make. State v. Clouse, 12/23/14, Nashville, Page, 16 pages.
http://www.tncourts.gov/sites/default/files/clouselesterarnoldopn.pdf

CRIMINAL PROCEDURE: In case in which petitioner, in 2014, pled guilty

to three counts of theft under $500 and two counts of vandalism under $500,
and in 2013, petitioner sought expunction of her criminal convictions, trial
court erred in granting petitioners request for expunction when petitioner, who
was convicted of more than one offense in multi-count indictment, was not

eligible petitioner for expunction under TCA 40-32-101(g)(1); petitioner is

not eligible for expunction of records of multiple criminal convictions unless
conduct upon which each conviction is based occurred contemporaneously, at
same location, and represented single continuous criminal episode with single
criminal intent; petitioners convictions cannot be considered single offense
under statute because indictment indicates that conduct occurred on differing
dates, was committed against different victims, and did not represent single
continuous criminal episode with single criminal intent. State v. Wooley,
12/18/14, Jackson, Holloway, 6 pages.
http://www.tncourts.gov/sites/default/files/wooleytrishopn.pdf

CRIMINAL SENTENCING: In case in which petitioner was convicted of

first degree murder and sentenced to death, petitioner's request for writ of error
coram nobis based on petitioner's argument that because he is intellectually
disabled, he is ineligible for death penalty was barred by one-year statute of
limitation; intellectual disability provisions in TCA 39-13-203 do not provide
independent cause of action allowing petitioner to challenge his eligibility for
death penalty. Sims v. State, 12/23/14, Jackson, Holloway, 18 pages.
http://www.tncourts.gov/sites/default/files/simsvincentopn_0.pdf

CRIMINAL SENTENCING: While TCA 29-21-101(b)(1) removed habeas

corpus relief for individuals who received concurrent sentencing where there
was a statutory requirement for consecutive sentencing, there is no such
limitation within TRCrP 36.1 claims; absent promulgation of amendment or
exception to TRCrP 36.1, habeas corpus statute cannot be construed as limiting
TRCrP 36.1 claims; because petitioners motion to correct illegal sentence
presents colorable claim for relief under TRCrP 36.1, case is remanded for trial
court to address legality of petitioners convictions and to determine whether
illegal provision was material component of plea agreement. State v. Wall,
12/23/14, Jackson, Page, 6 pages.
http://www.tncourts.gov/sites/default/files/walljeromeopn_0.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: When parole board recommended that
petitioners parole be revoked, and petitioners petition for writ of certiorari
was denied because he failed to file his appeal in Davidson County Chancery
Court within 60-day period allowed for filing such appeals petitioner
attempted to file appeal during that timeframe, but clerk returned it unfiled
because of unpaid court costs from previous matter district court erred in
dismissing petitioners habeas corpus claim on basis that petitioner had
procedurally defaulted; as it was applied, TCA 41-21-812, which prohibits

court clerks from filing claims while inmates have court costs and fees
outstanding, prevented petitioner from challenging his probation revocation
and unconstitutionally blocked his access to courts, and hence, it cannot be
considered adequate and independent state ground for denying review of a
federal constitutional claim. Clifton v. Carpenter, 12/24/14, Van Tatenhove,
11 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0307p-06.pdf

TRIAL COURTS
EMPLOYMENT: Substantial and material evidence did not support decision
of Designee of Commissioner of Labor and Workforce Development that
claimant, Executive Director of Statewide Independent Living Council of
Tennessee, having work done to his ocular prosthetics could have been workrelated in light of the Claimants job responsibilities in representing the
Employer to the public for purposes of unemployment compensation;
claimants charges of prosthetic eye cleaning and polishing on employers
debit card constitute disregard of reasonable standards of behavior that the
employer expects of an employee which is considered misconduct connected
with the claimants work in TCA 50-7-303(a)(2)(A) and which disqualifies
claimant from receiving unemployment compensation. Statewide Independent
Living Council v. Montgomery, 9/23/14, Davidson Chancery, Lyle, 24 pages.

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