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TAM-BYTES

May 8, 2017
Vol. 20, No. 19

TAM Webinars

Injury Damages in Tennessee: Whats the Extentand How to


Prove it, 60-minute webinar presented by Stephen R. Leffler, with
The Law Office of Stephen R. Leffler in Memphis, on Thursday, June
22, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-062217
or call us at (800) 727-5257.

Police Liability Defense Update: Section 1983, Excessive/Deadly


Force, and More, 60-minute webinar presented by Mark McGrady,
with Farrar & Bates in Nashville, on Tuesday, June 27, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/police-liability-062717
or call us at (800) 727-5257.

Zoning Appeals Navigation in Tennessee: Best Procedures and


Strategies for Attorneys, 60-minute webinar presented by Jason
Holleman, with West Nashville Law Group (WNLG) in Nashville, on
Thursday, June 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/zoning-062917
or call us at (800) 727-5257.

Preparing Title Opinions and Tackling Title Insurance Issues in


Tennessee, 60-minute webinar presented by Marcy S. Shelton, with
Reno & Cavanaugh in Nashville, on Tuesday, July 11, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/title-071117
or call us at (800) 727-5257.
Gun Dealer and Owner Liability in Tennessee: Client Counsel Tips
and Techniques, 60-minute webinar presented by James E. Wagner
with Frantz McConnell & Seymour in Knoxville, on Tuesday, July 18,
at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/guns-071817
or call us at (800) 727-5257.

Foreclosure Process and Case Management Strategies for


Tennessee Attorneys, 60-minute webinar presented by Mark
McGrady with Farrar & Bates in Nashville, on Thursday, July 20, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/foreclosure-072017
or call us at (800) 727-5257.

Key Elements of Wills in Tennessee, 60-minute webinar presented


by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-072717
or call us at (800) 727-5257.

On-Site Events
*Expanded to 2 days this year*
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.

12th annual
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 (Montgomery and Robertson counties); 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
(Greeene, Hamblen, Hancock & Hawkins counties)

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


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); 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 (Montgomery and Robertson counties);
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.

IN THIS WEEKS TAM-Bytes

Supreme Court affirms defendants first degree premeditated murder


and abuse of corpse convictions, as well as death sentence imposed
for murder conviction;
Court of Appeals, in suit in which plaintiff alleged that EMT struck
him in face with his fist while he was strapped to gurney, holds trial
court erred in dismissing claim with prejudice based on plaintiffs
failure to file certificate of good faith;
In pro se suit against several medical providers for injuries sustained
when plaintiff was allegedly beaten during medical procedures, Court
of Appeals affirms trial courts dismissal of healthcare liability claims
for failure to file certificate of good faith and pre-suit notice, but
reverses trial courts dismissal of non-healthcare liability claims;
Court of Appeals, in split decision, says in light of fathers current
alcohol and drug assessment, which recommended no further
treatment, fathers failure to submit to random drug testing is not
substantial enough to warrant grave consequences of termination of
his parental rights;
Court of Appeals rules ordinance, which requires 2,000 feet between
digital billboards and set distance between digital billboards and
residential property, is lighting regulation, not zoning regulation, and,
as such, is not covered by grandfather clause in TCA 13-7-208;
Court of Criminal Appeals says doctrine of transferred intent is on life
support in Tennessee and is not useful in assessing criminal liability
of one who fires single shot at individual who is accompanied by
others who are not injured by shot fired;
Court of Criminal Appeals rules affidavit alleging only that drugs
were bought in particular residence up to 72 hours beforehand cannot
support warrant for search of that residence and its occupants even
under totality-of-circumstances test adopted in State v. Tuttle;
General Assembly enacts Elderly and Vulnerable Adult Financial
Exploitation Prevention Act; and
Court of Workers Comp Claims says regardless of any reluctance of
employee to return to pain specialist, to whom she was referred by
panel physician, because of their strained doctor-patient relationship,
TCA 50-6-204(a)(3)(C) entitles injured worker to second opinion only
on the issues of surgery and diagnosis.

SUPREME COURT

CRIMINAL SENTENCING: In case in which defendant was convicted of


first degree premeditated murder and abuse of corpse in connection with
death of defendants girlfriend/mother of his children and dismemberment of
her corpse, sentence of death imposed was neither excessive nor
disproportionate to penalty imposed in similar cases, considering both nature
of crime and defendant; although trial court erred in admitting defendants
statement to police when defendant was illegally seized without warrant at
time he gave his statement, error was harmless when admission of statement
was cumulative to admission defendant made in presence of jury. State v.
Hawkins, 5/1/17, Jackson, Clark, concurrence by Lee, 62 pages.
http://www.tncourts.gov/sites/default/files/hawkinsjames.opn__0.pdf
http://www.tncourts.gov/sites/default/files/hawkinsjames.corr_.sepopn.pdf

COURT OF APPEALS

TORTS: When plaintiff filed suit alleging that EMT struck him in face with
his fist while he was strapped to gurney, trial court erred in dismissing claim
with prejudice based on plaintiffs failure to file certificate of good faith; it
would be within common knowledge of layperson whether EMTs alleged
negligent, reckless, or intentional striking of patients face while patient is
strapped to gurney would fall below standard of care; because this alleged
act would not require expert proof to aid in the understanding of this issue,
trial court erred by failing to determine that case fell within common
knowledge exception; because no expert proof was necessary to establish
negligence, no certificate of good faith would be required pursuant to TCA
29-26-122; case is remanded for entry of order dismissing plaintiffs claims
without prejudice based upon his failure to provide pre-suit notice. Zink v.
Rural/Metro of Tennessee L.P., 5/2/17, Knoxville, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/zink_opinion.pdf

TORTS: In pro se suit against several medical providers for injuries


sustained when plaintiff was allegedly beaten during medical procedures,
trial courts dismissal of healthcare liability claims are affirmed, but trial
courts dismissal of non-healthcare liability claims are reversed; when
plaintiff describes painful use of large probe on her hand and overdose of
electrical current as administered by Dr. Clendenin, plaintiff is complaining
about electro-diagnostic testing performed by Clendenin, and these claims
are healthcare liability claims requiring certificate of good faith and
appropriate pre-suit notice; in regard to Premier Radiology, plaintiff
complains that she was burned during her MRI because machine was too
hot, and this claim is related to administration of MRI, and, as such, is
healthcare liability claim requiring certificate of good faith and pre-suit
notice; plaintiff makes additional allegations against defendants that are not
clearly defined as healthcare liability claims that Clendenin physically
beat [her] after shock, hitting her four times on front part of her right
shoulder, that Bragdon beat her three to four times in the shoulder and
took her medical file and beat [her] from head to ankle up and down never
saying a word, and with regard to Premier Radiology, that MRI technician
beat her leg four times causing bruising and alleged willful and
malicious beatings by Clendenin, Bragdon, and MRI technician do not
constitute healthcare liability claims. Lacy v. Saint Thomas Hospital West,
5/4/17, Nashville, Armstrong, 7 pages.
http://www.tncourts.gov/sites/default/files/lacy.deborahv.saintthomas.opn_.pdf

ESTATES & TRUSTS: When decedent had four children but left majority
of her estate to one daughter (defendant), other three siblings (plaintiffs)
filed will contest alleging that defendant exercised undue influence over
decedent to induce her to change her will, in middle of bench trial, trial court
entered involuntary dismissal sua sponte at close of plaintiffs proof, and
trial court found that confidential relationship existed between decedent and
defendant but found by clear and convincing evidence that decedent was not
influenced in execution of her will, defendant did not, at this stage of
proceedings, prove by clear and convincing evidence that decedents 2013
will was product of decedents free and independent judgment as opposed to
imposition of defendants influence when in years before decedent died, she
began to believe that plaintiffs stole numerous things from her and wanted to
put her in nursing home, neither of these beliefs was true based on evidence
presented thus far, evidence further demonstrated that these false beliefs
originated with defendant, defendant isolated decedent from plaintiffs and
controlled most aspects of decedents daily life at time when decedent was
of advanced age and deteriorating health, and, most importantly, evidence
establishes that decedents false beliefs about these issues impacted her
decision-making with regard to her will; trial courts decision is vacated, and
case is remanded for further proceedings. In re Estate of Farmer, 5/5/17,
Nashville, Gibson, 26 pages.
http://www.tncourts.gov/sites/default/files/inreestatelaurac.farmer.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of


fathers parental rights on ground of wanton disregard for childs welfare
when, while fathers prison disciplinary record showed that father had
engaged in series of acts that have resulted in disciplinary measures being
taken against him while incarcerated, these acts do not come within purview
of wanton disregard ground for termination of parental rights set forth in
TCA 36-1-102(1)(A)(iv), which requires conduct to have occurred prior to
parents incarceration; trial court properly terminated fathers parental rights
on ground that he had been convicted of offense and was under sentence of
more than 10 years. In re Jeremiah N., 5/2/17, Knoxville, Dinkins, 24 pages.
http://www.tncourts.gov/sites/default/files/in_re_jeremiah_opinion.pdf

FAMILY LAW: Evidence preponderated against trial courts termination


of fathers parental rights to his child on ground of substantial non-
compliance with requirements of permanency plan when trial court primarily
relied on fathers failure to submit to random drug screens as basis for its
finding that he had failed to substantially comply with requirements of
permanency plan, and trial court gave little consideration to fact that father
had satisfied majority of plan requirements; while fathers failure to submit
to drug screens undermines his attempts to regain custody of child, drug
screening requirement should not garner weight it did at outset of these
proceedings in light of recent second drug and alcohol assessment, which
recommended no further treatment; in light of fathers current alcohol and
drug assessment, which recommended no further treatment, fathers failure
to submit to random drug testing is not substantial enough to warrant grave
consequences of termination of his parental rights at this point; because
Department of Childrens did not meet its burden to show by clear and
convincing proof any of other grounds for termination of fathers parental
rights, i.e., abandonment by willful failure to provide child with suitable
home, abandonment by willful failure to support, and persistence of
conditions, trial courts termination order is reversed. In re Damien G.M.,
5/3/17, Knoxville, Armstrong, dissent by Susano, 18 pages.
http://www.tncourts.gov/sites/default/files/in_re_damien_g.m._opinion.pdf

FAMILY LAW: Circuit court erred in separating grandparents termination


and adoption actions and transferring only termination portion of
proceedings to juvenile court when bifurcation typically does not severe
bifurcated issues from one another for purposes of final adjudication of
matter, rather, all issues must be determined to achieve final judgment in
such case, unless determination of one issue pretermits others; if termination
petition were to be adjudicated as separate matter, it could result in two
separate appeals on grandparents single petition, and although termination
petitions may be filed separately from adoptions, separate appeals on single
petition that was properly filed in single court does not further judicial
economy. In re Tyler G., 5/3/17, Nashville, Stafford, 10 pages.
http://www.tncourts.gov/sites/default/files/inretylerg.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


determination that husband had dissipated $65,000 in marital assets when
husband admitted that he purchased two homes during marriage, without
wifes knowledge or consent, where husband allowed his paramour and
her children to live for periods of time, and husband paid sums toward
paramours rent for two different apartments, as well as phone, utility, and
many other types of expenses on her behalf; evidence did not
preponderate against trial courts award to wife of alimony in futuro of
$1,800 per month given husbands significantly greater earning capacity,
better physical health, and higher level of education; although wifes adult
daughter had been living with her in marital residence since parties
separation even assuming that TCA 36-5-121(f)(2)(B), which
establishes rebuttable presumption that third person living with spouse
who is receiving alimony in futuro is either contributing to spouses
support or receiving support from spouse, would apply to initial alimony
award wife rebutted presumption that parties daughter financially
contributed to or received significant support from wifes household.
Talley v. Talley, 5/1/17, Knoxville, Frierson, 24 pages.
http://www.tncourts.gov/sites/default/files/talley_opinion.pdf

GOVERNMENT: When Anderson County Sheriffs Department


(Department) received notice from Department of Childrens Services
(DCS) that petitioner, law enforcement officer, had been indicated as
perpetrator of child abuse in DCS investigation pending in Roane County,
petitioner was placed on voluntary administrative leave, upon subsequent
notification that DCS indication had been upheld through administrative
review, Department terminated petitioners employment in 11/09, while
appeal to Civil Service Board (Board) of termination was pending, petitioner
filed petition in Roane County Chancery Court seeking judicial review of
DCSs administrative decision, on 8/3/12, Roane County Chancery Court
reversed classification and directed DCS to change classification from
indicated to unfounded, petitioner requested reinstatement, but sheriff
denied request, following hearing on 8/6/13, Board affirmed Departments
termination decision and denied petitioners motion for reinstatement filed
during hearing, and petitioner filed petition for certiorari and review of
Boards decision, trial court granted partial summary judgment in favor of
petitioner, respondents (Board and sheriff) filed motion to revise order,
and trial court vacated prior order granting partial summary judgment and
affirmed Boards decision, to persist in denying petitioner remedy of
reinstatement in face of no substantial and material evidence supporting
continued denial of his property right in civil service employment yields
arbitrary and capricious result; case is remanded to trial court for entry of
order directing respondents to reinstate petitioners employment,
determination of award of back pay, including benefits as applicable,
spanning period beginning with petitioners 9/1/12 request for reinstatement
and ending with effective date of reinstatement, and determination of
whether award of expenses related to recertification and training is
warranted; if petitioner files petition for front pay on remand, trial court
should consider such award if respondents present sufficient evidence that it
would not be feasible to reinstate petitioners employment. Smith v. White,
5/1/17, Knoxville, Frierson, 38 pages.
http://www.tncourts.gov/sites/default/files/carl_c._smith_opinion.pdf

GOVERNMENT: Trial court properly held that Board of Zoning Appeals


(Board) erred in issuing building permits to defendants (billboard company
and owners of property upon which two billboards sit) to allow them to
replace static display billboards with digital display billboards when
ordinance at issue, which requires 2,000 feet between digital billboards and
set distance between digital billboards and residential property, is lighting
regulation, not zoning regulation and, as such, not covered by grandfather
clause in TCA 13-7-208. Metropolitan Government of Nashville v. Board
of Zoning Appeals of Nashville, 5/2/17, Nashville, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/metro.gov_.nash_.v.bd_.ofzone.opn_.pdf
COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of three


counts of attempted second degree murder when he fired single shot through
glass door at his child, mother of his child, and her roommate, evidence was
not sufficient to support two of attempted second degree murder convictions
when defendants sole act of firing one bullet toward occupants of apartment
was not sufficient to show that defendant acted with conscious objective or
desire to cause knowing killing of three victims or that he believed act of
firing one bullet would cause killing of three separate victims, who were
spread out across two rooms; doctrine of transferred intent is on life support
in Tennessee and is not useful in assessing criminal liability of one who fires
single shot at individual who is accompanied by others who are not injured
by shot fired; two of defendants three attempted second degree murder
convictions, along with two associated counts of employing firearm during
commission dangerous felony, are reversed and dismissed; because version
of gang enhancement statute in effect at time of defendants convictions was
unconstitutional, these enhancements are vacated, and case is remanded for
resentencing on remaining convictions without gang enhancement. State v.
Turner, 5/5/17, Knoxville, Williams, 29 pages.
https://www.tba.org/sites/default/files/turnerr_050517.pdf?fid=aa8aff4719d1c41c52a1f760fccabd11d7fc3248

CRIMINAL LAW: In case in which defendant hid his cell phone in his 14-
year-old stepdaughters bathroom and secretly recorded her undressing and
showering, evidence was not sufficient to convict defendant of especially
aggravated sexual exploitation of minor when proof was lacking that victim,
as depicted on secretly-recorded video, was engaged in sexual activity by
lascivious exhibition of the female breast or the genitals, buttocks, anus or
pubic or rectal area, required element of offense due to opaque nature of
shower curtain, victim could not be observed while showering, camera was
not particularly positioned to capture as much of victims private areas as
possible or focus on her genitalia, and victim, while outside shower, could
generally be perceived as completing ordinary grooming tasks, although she
did briefly touch her nipples in relatively innocuous manner; evidence was
sufficient to convict defendant of attempted especially aggravated sexual
exploitation of minor, and on remand, trial court is instructed to amend
judgment order to reflect conviction for that lesser included offense and to
conduct new sentencing hearing on modified conviction. State v. Grisham,
5/5/17, Knoxville, Thomas, 37 pages.
http://www.tncourts.gov/sites/default/files/robert_grisham_opinion.pdf
CRIMINAL LAW: In case in which defendant was convicted of sale or
delivery of less than .5 gram of cocaine in drug-free zone of public park and
sale or delivery of more than .5 gram of cocaine in drug-free zone of public
park, defendant was erroneously charged with two separate and distinct
offenses in same indictment; delivery and sale of controlled substance are
separate offenses and should not be charged in same count of indictment;
duplicitous nature of defendants convictions for sale or delivery of
cocaine constitutes reversible error and violates defendants fundamental
and substantial right to unanimous jury verdict, and as such, defendants
convictions are reversed, vacated, and dismissed. State v. Hall, 5/4/17,
Knoxville, McMullen, 12 pages.
http://www.tncourts.gov/sites/default/files/hallmichaelopn.pdf

CRIMINAL PROCEDURE: In drug case, trial judge properly granted


defendants motion to suppress drugs recovered from defendants residence
when affidavit in support of search warrant failed to provide any basis of
knowledge and veracity for cooperating individuals claim that residents
were conducting ongoing drug sales from home, and hence, cooperating
individuals information was not reliable; affidavit alleging only that drugs
were bought in particular residence up to 72 hours beforehand cannot
support warrant for search of that residence and its occupants; even under
totality-of-circumstances test, adopted in State v. Tuttle, 42 TAM 15-2
(Tenn. 2017), affidavit in support of search warrant failed to establish
ongoing criminal activity in residence and, therefore, failed to establish
probable cause. State v. Braden, 5/2/17, Nashville, Ogle, 9 pages.
http://www.tncourts.gov/sites/default/files/braden_thomas_remand_opn.pdf

EVIDENCE: Law enforcement officer may offer lay opinion testimony as


to drivers performance on field sobriety tests, fitness to operate motor
vehicle, and degree of intoxication. State v. Gwinn, 4/26/17, Knoxville,
Easter, 10 pages.
http://www.tncourts.gov/sites/default/files/gwinn_opinion.pdf

CRIMINAL PROCEDURE: When post-conviction petition alleged


ineffective assistance of counsel and post-conviction court denied relief,
case is remanded for new post-conviction hearing because post-conviction
court failed to enter final order or memorandum that contained specific
findings of fact and conclusions of law relating to each issue presented,
final order did not comply with TCA 40-30-111(b) or Supreme Court Rule
28, Section 9(A), and post-conviction court did not orally pronounce any
findings of fact or legal conclusions at post-conviction evidentiary hearing.
Epps v. State, 5/4/17, Nashville, Holloway, 13 pages.
http://www.tncourts.gov/sites/default/files/henry_epps_0.pdf
PUBLIC CHAPTERS

COMMERCIAL LAW: Elderly and Vulnerable Adult Financial


Exploitation Prevention Act states that if financial service provider has
reasonable cause to suspect that financial exploitation of elderly adult has
occurred, has been attempted, or is being attempted, financial service
provider may refuse financial transaction or delay financial transaction on
account belonging to or associated with either elderly adult or person
suspected of perpetrating financial exploitation. 2017 PC 264, effective
7/1/17, 6 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0264.pdf

COMMERCIAL LAW: Attorney general is authorized to bring action


against person who violates spoofing provisions of act and to seek court
order to stop further violations and recover civil penalty of up to $10,000 per
violation; in addition to civil penalty, prevailing party may collect attorney
fees, court costs, and expenses. 2017 PC 257, effective 7/1/17, 5 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0257.pdf

SIXTH CIRCUIT COURT OF APPEALS

EMPLOYMENT: In case in which plaintiff, middle school guidance


counselor, suffered stroke and was diagnosed with fibromuscular dysplasia,
condition that put her at risk for additional stroke, was notified that she was
to be transferred from Dupont-Tyler Middle School (DTMS) to Madison
Middle School (Madison) for 2013-14 school year, in response, plaintiff sent
school district letter giving notice of her claimed disability under Americans
with Disabilities Act (ADA) and requesting accommodations under ADA,
including being allowed to remain at DTMS, school district offered to
transfer plaintiff to elementary school that was closer to plaintiffs doctors
than DTMS, but plaintiff turned down offer because it was not guaranteed
that he would remain there is subsequent years, school district stuck to its
decision to transfer plaintiff to Madison, and plaintiff filed suit under ADA,
alleging that school district failed to accommodate her disability, district
court properly granted summary judgment to school district; ADAs
requirement to accommodate extends only as far as reasonably necessary to
allow qualified, disabled individuals to perform essential functions of job;
school district had no duty to accommodate plaintiffs commute time to her
doctors or to protect her from stress of change. Zaffino v. Metropolitan
Government of Nashville, 5/4/17, McKeague, 6 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0258n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee injured his low back


and right leg at work, employer accepted claim and provided two panels of
physicians, employee selected Drs. Wachter and Glattes, and Glattes
referred employee to Dr. Hazlewood for specialty care, because TCA 50-6-
204(a)(3)(H) provides any treatment recommended by physician selected
from panel, or by referral, shall be presumed necessary, and because
Hazlewood expressed willingness to further treat employee, employee
remains entitled to medical benefits with Hazlewood; regardless of any
reluctance of employee to return to Hazlewood because of their strained
doctor-patient relationship, statute leaves court with no alternative regarding
employees request for second opinion as TCA 50-6-204(a)(3)(C) entitles
injured worker to second opinion only on the issues of surgery and
diagnosis, and there is no entitlement to second opinion on issue of
diagnosis alone. Milliken v. Wayne Day Enterprises, 2/13/17, Nashville,
Switzer, 7 pages.
http://trace.tennessee.edu/utk_workerscomp/720

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