TAM-BYTES

April 13, 2015

Vol. 18, No. 15
2015 TAM CLE CALENDAR

Webinars
Health-Related Boards in Tennessee: Defending Professionals in
Disciplinary Proceedings, 60-minute webinar presented by Garrett
Asher, with Parker, Lawrence, Cantrell & Smith in Nashville, on
Wednesday, April 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Appellate Practice Basics: Top 10 Ways to Lose Your
Appeal, 60-minute webinar presented by Elizabeth Sitgreaves, with
Dodson, Parker, Behm & Capparella in Nashville, on Thursday, May 7, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Enhancing Your Trial Skills: Applying Rules of Discovery and
Evidence, 60-minute webinar presented by Stephen Gillman, with
Priest, Harber, Floyd & Coffey in Knoxville, on Wednesday, May 13, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
E-Discovery in Tennessee: Where We Are and Where We Are
Going, 60-minute webinar presented by Russell Taber, with Riley,
Warnock & Jacobson in Nashville, on Wednesday, May 27, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Follow the Money: Finding Applicable Insurance and Collectible
Assets in Auto Injury Cases in Tennessee, 60-minute webinar
presented by Burke Keaty, with the Law Offices of John Day in
Brentwood, on Wednesday, May 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Probate Litigation in Tennessee: Hot Topics and Recent

Developments, 60-minute webinar presented by Rebecca Blair, with
The Blair Law Firm in Brentwood, on Thursday, May 28, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee

Attorneys
*Now in its 8th year!*
WHEN: Friday, May 8
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL
and 1 hour of DUAL credit
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day; Daniel Clayton, Kinnard, Clayton &
Beveridge; C. J. Gideon, Gideon, Cooper & Essary; Ben Harrison,
Cornelius & Collins; Marty Phillips, Rainey, Kizer, Reviere & Bell; and
Tom Pinckney, Of Counsel, Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate
of good faith requirements; practical considerations for handling a health
care liability claim on behalf of an injured patient; techniques for
deposing an expert; physician credentialing and other hospital liability
issues; trial tips and tactics from the defense perspective; deposition
strategies; the use of technology in a health care liability case; review of
recent health care liability appellate court cases; a panel discussion of hot
topics in health care liability actions; and ethical issues in handling
medical records, including HIPAA compliance.

Tennessee Business Law Conference

*New for 2015!*
WHEN: Friday, May 15
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL
and 1 hour of DUAL credit
*Davidson County Chancellor Ellen Hobbs Lyle, whose court will be
hearing business law cases, will be at the conference to explain how
the new business court will work!! Shell be available for questions!!
FACULTY: Alexander J. Davie, Riggs Davie, Nashville; Keith C.
Dennen, Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton,
Franklin; J. Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga;
Mark Ison, Sherrard & Roe, Nashville; Thomas K. Potter, III, Burr &
Forman, Nashville; Andrew J. Pulliam, Wyatt, Tarrant & Combs,
Nashville; and Richard Spore, Bass, Berry & Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to
consider, parent/subsidiary liability, reverse piercing, and effect of
Hobby Lobby; liability and fiduciary duties of corporate officers and
directors to the corporation and the shareholders; a step-by-step guide to a
business divorce from fact-finding to the end game; recent changes
to the Tennessee Nonprofit Corporation Act optional changes to
governing documents; key considerations in selecting a business entity
for example, using series LLCs and new hybrid alternatives; drafting LLC
operating agreements key provisions to include; forming a professional
service business including management services and friendly PC
arrangements involving nonprofessionals; and ethics for attorneys in
business disputes including understanding the scope of your
representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court holds that criminal attempt is available as lesser
included offense of any charged offense in every case in which (1)
charged offense has requisite intent element and (2) proof has fairly
raised completed offense;

 Supreme Court holds right to pretrial bail can be forfeited and

clarifies pretrial bail revocation procedure;
Court of Appeals, in medical malpractice case, rules defendants
answer was sufficient to trigger TCA 20-1-119, giving plaintiff 90
days to assert comparative fault against nonparties, although it did
not identify specific nonparties by name;
Court of Appeals says trial court may not direct placement of child
who is in legal custody of Department of Childrens Services;
Court of Criminal Appeals says trial court erred in failing to sever
counts of indictment alleging drug offenses from those charging
felony murder and aggravated child neglect offenses when state
presented no proof that defendants inattentiveness to safety and
welfare of victims and manufacture of drugs were, together, parts of
continuing scheme or plan;
Court of Criminal Appeals rules, in DUI case, that activation of
emergency lights by officer was exercise of community caretaking
function and did not constitute seizure; and
General Assembly creates cause of action in favor of employee who
possesses valid handgun carry permit when employee is discharged
or subjected to adverse employment action solely for transporting
or storing firearm or firearm ammunition in employers parking
area as permitted by TCA 39-17-1313(a).

SUPREME COURT
CRIMINAL LAW: Criminal attempt is available as lesser included
offense of any charged offense in every case in which (1) charged offense
has requisite intent element and (2) proof has fairly raised completed
offense; proof, even uncontroverted proof, that defendant completed
crime, in and of itself, does not shield defendant from conviction for
criminal attempt of crime allegedly completed; in case in which
defendant was convicted of attempted sexual battery by authority figure,
trial judge properly included criminal attempt to commit sexual battery
by authority figure in its jury instructions as lesser included offense of
sexual battery by authority figure. State v. Thorpe, 4/6/15, Nashville,
Bivins, unanimous, 18 pages.
http://www.tncourts.gov/sites/default/files/thorpej.opn_.pdf

CRIMINAL PROCEDURE: Tennessee Constitution guarantees

defendant right to pretrial release on bail, but this right is not absolute;
defendant may forfeit his or her right to bail by subsequent criminal

conduct; before pretrial bail can be revoked, defendant is entitled to

evidentiary hearing. State v. Burgins, 4/7/15, Nashville, Lee,
unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/burginsl.opn_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employees job as customer
service representative and claims specialist required repetitive use of her
arms, hands, and fingers while using computer and telephone, employee
noticed pain and numbness in her upper extremities beginning in 2012,
employer replaced keyboard in effort to alleviate her symptoms, employee
resigned in 6/14, hand specialist diagnosed probable bilateral carpal
tunnel syndrome and cubital tunnel syndrome on 12/1/14, and employee
filed Petition for Benefit Determination, in absence of transcript, trial
courts findings, including that medical expert opinion failed to establish
that employees bilateral carpal tunnel syndrome arose primarily out of
and in course and scope of employment, are presumed to be supported by
sufficient evidence; only evidence regarding medical causation was
offered by employer, who provided opinion from treating physician that
employees condition was not primarily related to her work activities.
Howard v. Unum, 4/8/15, Conner, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1077&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1067&context=utk_workerscomp

WORKERS COMPENSATION: When construction worker injured his

head and low back when he fell from ladder at job site where he was
making repairs to roof of hotel, employee alleged that for approximately
one and one-half years before accident he worked off and on for owner
of construction company that was general contractor for job, and
construction company denied that worker was employee at time of alleged
injury, denied that company was general contractor on project, and denied
that it paid worker for any work performed on project, trial courts finding
that worker did not work for construction company as statutory employee
on date of alleged injury is presumed to be supported by sufficient
evidence. Beers v. Bhakta, 4/8/15, Hensley, 15 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1076&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1068&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff filed medical malpractice action in 12/11,
defendant filed answer on 3/1/12 asserting comparative fault, defendant
filed motion to amend answer on 11/5/12 to allege comparative fault
specifically naming Prism Medical Group, Inc., Dr. Johnson, and nurse
practitioner Stricklin (Prism appellees), amended motion was filed on
12/10/12, and plaintiff filed amended complaint naming Prism appellees
as additional defendants on 3/6/13, trial court properly granted Prism
appellees motion to dismiss amended complaint based on statute of
limitation; defendants answer was sufficient to trigger TCA 20-1-119,
giving plaintiff 90 days to assert comparative fault against nonparties,
although it did not identify Prism appellees by name, when plaintiffs
complaint made specific allegations regarding acts of negligence in
diagnosis and treatment of his stroke, which acts can only be undertaken
by physician or other medical provider and when defendant clearly stated
in its answer that it was prohibited by law from practicing medicine and
that physicians treating plaintiff were not employed by defendant; plaintiff
argued that defendants failure to file certificate of good faith within 30
days of its answer was ineffective to trigger requirement to amend his
complaint within 90-day grace period, but TCA 29-26-122 provides that
defense of comparative fault is subject to being stricken only upon
motion. Swearengen v. DMC-Memphis Inc., 4/2/15, WS at Memphis,
Armstrong, 15 pages.
http://www.tncourts.gov/sites/default/files/swearengencliffordopn.pdf

INSURANCE: When home of insureds was damaged by fire on

12/15/11, insured submitted claim with insurer pursuant to homeowners
insurance policy, insurer submitted estimate and tendered settlement
check to insureds on 4/2/12, and insureds filed suit alleging they were
owed additional $75,000 for personal use and construction improvements
on new home, trial court properly ruled that insureds claims were barred
by one-year contractual limitations period; regardless of whether insurer
chooses to grant or deny claim prior to end of settlement period, its
determination to do one or other acts as waiver of its immunity from suit,
and contractual limitations period begins to run; insureds cause of action
accrued on 4/2/12, when insurer ended settlement period by tendering
estimate and settlement check to insureds; if insureds were not satisfied
with amount of insurers estimate and/or settlement check, they had one
year from that date to challenge it in court; one-year contractual
limitations period had already expired when insureds filed their suit

against insurer on 10/3/13. Daniel v. Allstate Insurance Co., 4/6/15, WS,

Gibson, 6 pages.
http://www.tncourts.gov/sites/default/files/danieljayopn.pdf

FAMILY LAW: In case in which child was removed by Department of

Childrens Services (DCS) from home of her foster parents, who had
cared for her almost since birth, as result of allegations that foster parents
had abused one of their other children, childs guardian ad litem filed
emergency petition seeking return of child to foster parents home, or
alternatively, for award of legal custody to foster parents, and trial court
ordered that child be returned to foster parents home, but declined to
remove child from DCSs legal custody, trial court may not direct
placement of child in legal custody of DCS; TCA 37-1-129(e)(1)
empowers DCS, rather than trial court, to direct placement of children in
its custody and specifically limits trial courts power to merely making
recommendation concerning DCSs placement based on best interest of
child; nothing in adoption statutes confers any additional power on
chancery court to direct placement of child in DCS custody, while
juvenile court is merely allowed to make recommendations in similar
situation; trial courts ruling is reversed, and case is remanded for further
proceedings. In re Neveah W., 4/2/15, WS, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/inreneveahwopn.pdf

CIVIL PROCEDURE: When age discrimination suit was filed initially

against single defendant (Superior Catering Services), and three additional
defendants Dean Cofer, Lynda Cofer, and Deans Coffee Services
(DCS) were later added, but plaintiff served process for them on
attorney (Purple) for Superior, trial court erred in holding that Purple
waived additional defendants right to object to service; since additional
defendants had no knowledge that they had been added as parties and that
Purple was acting on their behalf, they did not confer apparent authority
upon Purple sufficient to waive their rights; actions of Lynda Cofer did
not constitute general appearance when Lynda Cofer appeared in court on
day of trial, two days after she first learned that she was defendant in
litigation, but she appeared primarily in attempt with help of Love,
Cofers personal attorney, to get trial continued, so that she, her husband,
and DCS could obtain counsel of their own, and secondarily, she appeared
as only representative and witness for Superior; improperly admitted
evidence Morgans improper hearsay statements was so significant as
to affect jurys verdict. Morgan v. Superior Catering Services, 4/7/15,
ES, McClarty, 19 pages.
http://www.tncourts.gov/sites/default/files/morganmichael2opn.pdf

CIVIL PROCEDURE: In case in which trial court referred case to

special master for determination of proper heirs of residuary trust, trial
courts order is vacated because trial court failed to comply with
requirements of TRCP 53 master failed to file transcript or record of
proceedings before master, trial courts statement in ruling on motion to
quash did not indicate trial courts independent review of special masters
findings, and special master did not submit findings to clerk; clerks
service of notice of filing of special masters report is triggering event for
running of 10-day period within which to file objection, there is no
indication that clerk mailed notice of filing of special masters report to
parties or their respective attorneys so as to trigger 10-day period, and
hence, appellants were never given opportunity to make written objections
to report prior to trial courts adoption of it. Peacher-Ryan v. Heirs at
Law of Ruth James Gaylor, 4/9/15, WS, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/peacher-ryanjohnopn.pdf

GOVERNMENT: In case in which Town of Collierville (Town) passed

ordinance prohibiting construction of new billboards, Town, through its
Development Department, asserted that two billboards erected prior to
passage of ordinance were illegal and ordered that they be removed,
owner of billboards appealed removal order to Board of Zoning Appeals
(Board), which allowed billboards to remain, and Town and Development
Department petitioned for writ of certiorari, seeking judicial review of
Boards decision, chancery court erred in dismissing petition for lack of
standing; Town and Development Department have standing to seek
review of Boards decision given fact that both Town and Development
Department fall within zone of interests sought to be protected by
ordinance prohibiting construction of new billboards. Town of Collierville
v. Town of Collierville Board of Zoning Appeals, 4/7/15, WS, McBrayer,
9 pages.
http://www.tncourts.gov/sites/default/files/townofcolliervilleopn.pdf

CRIMINAL PROCEDURE: In case in which officials from sheriffs

office and U.S. Department of Agriculture seized two Tennessee Walking
Horses incident to arrests of horses trainers for animal cruelty, officials
placed horses into custody of Humane Society of United States, owners of
horses (appellees) filed complaint for possession seeking to recover
horses, trainers pled guilty to state animal cruelty charges, admitting to
having sored and abused horses, and state filed forfeiture complaint with
regard to two horses, trial court erred in granting appellees motion to
dismiss forfeiture complaint without first requiring appellees to establish

standing by preponderance of evidence. In re Tennessee Walking Horse

Forfeiture Litigation, 4/8/15, WS, Childers, 10 pages.
http://www.tncourts.gov/sites/default/files/tnwalkinghorseopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of first
degree premeditated murder when, although repeated blows, failure to
report crime, and use of deadly weapon do not individually establish
premeditation, circumstances of crime, taken together, abundantly
establish premeditation state introduced evidence establishing dispute
which motivated killing, prior to actual crimes, defendant attempted to
return to apartment where dispute took place, defendant used deadly
weapon on unarmed victim, he shot victim multiple times, victim was
retreating when he was shot, defendant asked who was in house before he
started shooting, and after crimes, defendant destroyed phone he had used
in vicinity of crime scene. State v. Swafford, 4/2/15, Nashville, Williams,
23 pages.
http://www.tncourts.gov/sites/default/files/swaffordopn.pdf

CRIMINAL PROCEDURE: Trial court erred in failing to sever counts

of indictment alleging drug offenses (Counts 5 through 8) from those
charging felony murder and aggravated child neglect offenses (Counts 1
through 4) when state presented no proof that defendants inattentiveness
to safety and welfare of victims and manufacture of drugs were, together,
parts of continuing scheme or plan; given explosive nature of two sets of
charges, deaths of young children, and manufacture of illegal drugs,
joinder of offenses by trial judge constituted reversible error; defendants
convictions for drug offenses in Counts 5 through 8 of indictment are
reversed, and case is remanded for new trial on those charges. State v.
Bates, 4/7/15, Knoxville, Glenn, 15 pages.
http://www.tncourts.gov/sites/default/files/batesnatashaopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial court properly denied

defendants motion to suppress given fact that officer was exercising his
role as community caretaker when he activated his emergency lights and
stopped defendants vehicle activation of emergency lights by officer
was exercise of community caretaking function and did not constitute
seizure. State v. McCormick, 4/2/15, Nashville, Williams, 8 pages.
http://www.tncourts.gov/sites/default/files/revisedmccormick.pdf

SIXTH CIRCUIT COURT OF APPEALS

INSURANCE: In case in which plaintiffs claimed that strong winds had
caused significant damage to their property, but jury determined that
landslides, which were excluded from policy coverage, were primary
catalyst for damage, district court did not err in failing to include jury
instruction on resolving ambiguity in insurance contracts; insurance
policies are contracts and, thus, are subject to same rules of construction
and enforcement as apply to contracts generally; existence of ambiguity
in written contract and its resolution are questions of law for judge, not
jury. Tannenbaum v. Federal Insurance Co., 4/7/15, Batchelder, 8
pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0253n-06.pdf

GOVERNMENT: In case in which plaintiff, who worked for Shelby

County Assessors Office, filed suit alleging that county violated her
procedural due process rights in considering her reclassification request
and that denial of reclassification was retaliation for First Amendment
protected activity, district court properly granted county summary
judgment; plaintiff did not provide evidence that county maintained rules
or understandings that guaranteed employee additional pay if he or she
performed work above her job classification, and because plaintiff cannot
show that she had property interest in reclassification, her procedural due
process claim fails; no reasonable jury could find that assessor interfered
with plaintiffs reclassification request in attempt to retaliate for plaintiffs
protected speech activities when plaintiffs primary evidence of causation
was that assessor knew of plaintiffs campaign activities in support of
assessors opponent in election, as evidenced by both womens presence
at joint campaign event, but campaign event occurred approximately two
years before plaintiff requested reclassification study, and plaintiffs
additional evidence of causation was merely that assessor was less
friendly than she had been and that other assessors office employees
reclassification requests were treated differently before county enacted its
reclassification freeze. Stiger v. Johnson, 4/7/15, Stranch, 6 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0251n-06.pdf

CRIMINAL PROCEDURE: District court properly denied defendants

motion to suppress evidence gathered during traffic stop when officers
reason to stop defendants vehicle, i.e., inquiring into defendants illegal
changing of lanes, was lawful, officer was allowed to ask defendant to exit
vehicle during course of lawful traffic stop, and defendants reaching of
his hand out of sight justified officers subsequent patdown and further

detention of defendant; officers treatment of defendant immediately prior

to and also during patdown threats, coarse language, and rough
manhandling may have been unpleasant, but did not affect search and
did not violate Fourth Amendment; defendants sudden hand movements
and temporary refusal to cooperate justified officers actions until he put
his finger in defendants mouth, officer and/or his colleagues inevitably
would have discovered evidence, i.e., drugs, that defendant moved to
suppress even if officer had not put his finger into defendants mouth.
United States v. Bost, 4/9/15, Boggs, 11 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0258n-06.pdf

PUBLIC CHAPTERS
EMPLOYMENT: No employer may discharge or take any adverse
employment action against employee who possesses valid handgun carry
permit solely for transporting or storing firearm or firearm ammunition in
employers parking area as permitted by TCA 39-171313(a); employee
discharged, or subject to adverse employment action, in violation of act
has cause of action against employer to enjoin future acts in violation of
act and to recover economic damages plus reasonable attorney fees and
costs. 2015 PC 80, effective 7/1/15, 3 pages.
http://www.tn.gov/sos/acts/109/pub/pc0080.pdf

COMMERCIAL LAW: Provisions governing for-profit and non-profit

corporations are amended to reverse changes added in 2012 and 2014 requiring
class voting on plans of merger. 2016 PC 60, effective 4/6/15, 3 pages.
http://www.tn.gov/sos/acts/109/pub/pc0060.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Although employee suffered heatrelated injury on 7/11/14 caused by specific incident, or set of incidents,
and identifiable by time and place of occurrence, employee failed to
show by a preponderance of the evidence that the employment
contributed more than fifty percent (50%) in causing the injury,
considering all causes when treating physician opined No when asked
[a]fter reviewing your medical records for your treatment of [employee],
can you say, within a reasonable degree of medical certainty, that
[employees] employment contributed more than 50% of the need for
medical treatment, considering all causes from the symptoms he was
complaining of [sic] any diagnoses; 7/11/14 injury did not arise primarily

out of and in course and scope of employment. Massengill v. McKendree

Concrete, 1/6/15, Johnson, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1040&context=utk_workerscomp

ATTORNEY GENERAL OPINION

GOVERNMENT: Legislature has authority to change portion of stateshared revenue that it allocates to municipality both retroactively and
prospectively. Attorney General Opinion 15-30, 4/2/15, 3 pages.
http://www.tn.gov/attorneygeneral/op/2015/op15-30.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