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TAM-BYTES

May 29, 2017


Vol. 20, No. 22

TAM Webinars

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.
Tennessee Series LLC: Client Counsel Best Practices for Liability
Separation, 60-minute webinar presented by Michael Goode, with
Stites & Harbison in Nashville, on Wednesday, August 2, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/series-LLC-080217
or call us at (800) 727-5257.

Tennessee Probate Case Law and Legislative Update: What


Attorneys Need to Know, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, August 3,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/probate-080317
or call us at (800) 727-5257.

On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

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 holds that courts do not have discretion to deny award
of attorney fees, incurred at either trial court or appellate level,
mandated by valid and enforceable marital dissolution agreement
between parties;
Workers Comp Appeals Board holds that trial courts resolution of
attorney fees and expenses issue was premature when, after trial court
determined that employee was entitled to medical and temporary
disability benefits, employee filed motion seeking attorney fees and
expenses pursuant to TCA 50-6-226(d)(1);
Court of Appeals, in healthcare liability action alleging negligent care
during childs birth, rules childs medical authorizations were not
insufficient since he could not authorize release of mothers medical
records concerning prenatal treatment, and hence, childs pre-suit
notice extended statute of repose by 120 days;
Court of Appeals rules trial court properly classified wifes IRA as
her separate property when wife testified that origin of money used
to create IRA was from wifes separate premarital earnings, and
any increases in value of IRA were attributable solely to market
factors rather than any contributions to its preservation or
appreciation by husband;
Court of Appeals holds trial court erred in classifying appreciation in
value of husbands IRA as marital property when husband owned IRA
prior to marriage and funded it with premarital assets, and there was
no evidence establishing nexus between wifes marital contributions
to household expenses and appreciation in value of IRA;
In case in which parties were never married but had child together,
Court of Appeals rules trial court did not abuse discretion by denying
fathers request for deviation from presumption that he was
responsible for child support back to date of childs birth when, even
if mother later recanted her statement that father was childs
biological father, father should have known, or strongly suspected,
that he was likely childs father;
Court of Criminal Appeals holds trial court erred in denying
defendants motion to suppress statement he gave to police when
defendant told detectives, I aint got nothing else to say, first
detective ceased questioning and left room, but in short span of
just over nine minutes, second detective entered room and
resumed questioning;
Court of Criminal Appeals holds that when charged offense is
aggravated rape, which involves nature of conduct crime, it is error
for trial court to charge mental state definition of reckless with
respect to element of sexual penetration;
General Assembly enacts Tennessee Uniform Limited Partnership
Act; and
General Assembly limits recovery of retroactive child support to five
years unless good cause is shown.

SUPREME COURT

FAMILY LAW: In post-divorce cases in which party seeks award of attorney


fees, incurred at either trial court or appellate level, under statutory authority
alone, i.e., TCA 27-1-122 (frivolous appeals statute) or TCA
36-5-103(c) (enforcement of orders statute), statute governs award of fees;
Court of Appeals has no discretion whether to award attorney fees when
parties have valid and enforceable marital dissolution agreement (MDA) which
requires award of reasonable attorney fees to prevailing or successful party,
and court should look to parties MDA, i.e., contract, first before moving on to
any discretionary analysis under either TCA 27-1-122 or 36-5-103(c).
Eberbach v. Eberbach, 5/23/17, Nashville, Bivins, unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/eberbachelizabeth.opn_.pdf

PROFESSION OF LAW: In case in which attorney was found to have


mishandled funds in his trust account and to have lied under oath, attorneys
five-year suspension, probated after period of one year, conditioned upon his
payment of $7,500 restitution to his client, was proper; although parties fee
agreement called for attorney to pay client $7,500 only after his law license
was reinstated, neither hearing panel of Board of Professional Responsibility
nor circuit court is bound by terms of fee dispute agreement, and as such,
payment of $7,500 in restitution to client is affirmed. Napolitano v. Board of
Professional Responsibility, 5/24/17, Nashville, Bivins, unanimous, 34 pages.
http://www.tncourts.gov/sites/default/files/napolitano.peter_.opn_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: While 2013 Workers Compensation


Reform Act removed provisions which authorized reimbursement of ordered
benefits from Second Injury Fund now called Subsequent Injury and
Vocational Recovery Fund nothing in current statute prevents employer
from seeking reimbursement from employee in event trial court later
reverses its ruling on employees entitlement to temporary disability
benefits; employer argued that employee failed to follow proper court
procedure when she elected not to appeal trial courts second interlocutory
order and instead filed new request for expedited hearing, but nothing in
statutes or regulations limits any party to filing single request for expedited
hearing; similarly, nothing mandates that party appeal interlocutory order
prior to filing subsequent request for expedited hearing. Green v. Rogers
Group, 5/22/17, Conner, 17 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1808&context=utk_workerscomp

WORKERS COMPENSATION: When, following trial courts


determination that employee was entitled to medical and temporary disability
benefits, employee filed motion seeking attorney fees and expenses pursuant
to TCA 50-6-226(d)(1), which permits trial court to award reasonable attorney
fees and reasonable costs when employer wrongfully denies claim by filing
timely notice of denial, or fails to timely initiate any of benefits to which
employee is entitled if judge finds such benefits were owed at expedited
hearing or compensation hearing, and trial court denied motion based on
finding that employer acted reasonably in declining to pay benefits,
determination of attorney fees and expenses is not ripe at this stage of case;
given twists and turns inherent in litigation, better practice is to resolve such
issues after litigation has run its course and parties and court no longer face
uncertainties over future development, as opposed to adjudicating disputes
concerning attorney fees and expenses in piecemeal fashion as case winds its
way through litigation process; trial courts resolution of attorney fees and
expenses issue was, at this early juncture in case, premature. Andrews v. Yates
Services LLC, 5/23/17, Davidson, 17 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1812&context=utk_workerscomp
COURT OF APPEALS

TORTS: In healthcare liability suit by mother and child alleging that both
plaintiffs suffered permanent injuries resulting from defendant healthcare
providers negligent care during childs birth, trial court properly concluded
that mothers claims were barred by statute of limitation as TCA 28-1-106
requires that individual be adjudicated incompetent at time his or her
cause of action accrued in order to toll statute of limitation; trial court erred
in dismissing childs claims based on statute of repose when records from
prenatal treatment that mother received prior to date of delivery were
mothers medical records, and child could not have unilaterally authorized
their release, and, as such, his failure to do so did not render medical
authorization provided with his pre-suit notice insufficient, and TCA 29-26-
121(c) extended filing period by 120 days. Woodruff ex rel. Cockrell v.
Walker, 5/26/17, Jackson, Goldin, 18 pages.
http://www.tncourts.gov/sites/default/files/woodruffjoshlinopn.pdf

ESTATES & TRUSTS: When judgment was entered against decedents


daughter and son-in-law (appellants) in suit for breach of fiduciary duty and
misappropriation of decedents funds, judgment was affirmed as to daughter
on appeal but reversed as to son-in-law, before judgment had been obtained,
daughter combined individual CD owned solely by her in amount of $46,818
with CD owned by son-in-law in amount of $51,000 to create single new
joint CD in amount of $97,853 with right of survivorship, after first case was
finalized, appellee filed suit against appellants alleging fraudulent
conveyance, material evidence supported jurys verdict finding that daughter
transferred her CD and combined it with her husbands CD to create joint
CD at bank with actual intent to hinder, delay, or default decedents estate.
Teague v. Kidd, 5/25/17, Knoxville, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/teague_v_kidd_opinon.pdf

ESTATES & TRUSTS: When decedent, who died at age 95, was survived
by two nieces and three nephews, one of whom (defendant) was decedents
attorney-in-fact and personal representative of estate, decedents two nieces
and one other nephew (plaintiffs) filed complaint alleging undue influence
arising from confidential relationship against defendant for his role in
changing bank accounts and CDs owned by principal to payable on death to
defendant, evidence preponderated in favor of trial courts finding by clear
and convincing evidence that defendant successfully rebutted presumption
of undue influence when plaintiffs argued that defendants testimony
indicated that he treated decedents designation of him as beneficiary to
accounts as payment for care he provided decedent, plaintiffs asserted that
[i]t would be incredible to argue that his care was worth in excess of
$458,000, defendant stated that decedent was like father to him, there was
no evidence that defendant ever isolated decedent from other family member
or insisted on being present when others visited decedent, and plaintiffs
collective testimony demonstrated that none of them had witnessed signs of
mental impairment in decedent or dependence beyond his need of physical
assistance. Frank v. Fields, 5/26/17, Knoxville, Frierson, 21 pages.
http://www.tncourts.gov/sites/default/files/frank_v_fields_opinion.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


division of parties marital property, 60% to wife and 40% to husband, when
trial court determined that based on wifes steady income throughout
marriage, wifes financial contribution to marriage was much more
significant than that of the Husband; trial court properly classified wifes
Roth IRA as her separate property when wife testified that origin of money
used to create Roth IRA was from wifes separate premarital earnings, and
any increases in value of IRA were attributable solely to market factors
rather than any contributions to its preservation or appreciation by husband.
Harrison v. Harrison, 5/22/17, Knoxville, Frierson, 21 pages.
http://www.tncourts.gov/sites/default/files/harrison_v_harrison_opinion.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


determination that no valid post-nuptial agreement existed between parties
and that revocable trust created by husband, along with accompanying
warranty deeds, did not constitute written post-nuptial agreement when there
was no meeting of the minds necessary to enforce oral or written post-
nuptial agreement; trust documents neither reference post-nuptial agreement
nor do they discuss divorce and separation issued pertaining to division of
real properties transferred into trust trust was apparently created to protect
husbands personal assets from potential lawsuits connected to his land
survey business and to bequeath all trust properties to wife and her children
in event of husbands death; trial court erred in classifying appreciation in
value of husbands Fidelity Primary IRA as marital property when husband
owned IRA prior to marriage and funded it with premarital assets, and there
was no evidence establishing nexus between wifes marital contributions to
household expenses and appreciation in value of IRA; in light of wifes
substantial financial contributions during marriage, trial court did not err in
dividing all marital property in equal shares to both parties even though
marriage was of short duration, i.e., 5.5 years. Ogle v. Duff, 5/24/17,
Knoxville, Bennett, 16 pages.
http://www.tncourts.gov/sites/default/files/ogle_v_duff.pdf
FAMILY LAW: In case in which parties were never married but had child
together, trial court did not abuse discretion by denying fathers request for
deviation from presumption that he was responsible for child support back to
date of childs birth when, even if mother did later recant her statement that
father was childs biological father, father should have known, or strongly
suspected, that he was likely childs father father had been in relationship
with mother for five years, and he was frequently visiting Tennessee around
time child was conceived; trial court erred in ordering that childs surname
be changed to fathers surname when father failed to present evidence that
changing childs name was in her best interest. Parrish v. Griggs, 5/25/17,
Jackson, McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/parrishkatrinaopn.pdf

FAMILY LAW: Evidence did not support termination of mothers and


fathers parental rights to child on ground of persistence of conditions when
child had not been removed from parents home for six months by court
order when termination petition was filed; evidence supported termination of
parents parental rights on other grounds, i.e., abandonment by failure to
provide child with suitable home, failure to substantially comply with
requirements of permanency plans, and, with regard to mother, that she was
mentally incompetent to adequately care for child; trial court erred by
admitting mothers hospital records when trial court erroneously determined
that TRJP 39(e)(5) dictated admission of mothers hospital records and
overcame psychologist-patient privilege, but TCA 68-11-404(a), which sets
forth procedure for opening sealed records, is not predicated on
psychologist-patient privilege, but instead, instructs trial courts relative to
procedure allowing for admission of patients hospital records into evidence
as such, TCA 68-11-404(a) would apply regardless of whether issue of
privilege existed; trial courts error was harmless when remaining clear and
convincing evidence supported termination of mothers parental rights. In re
Lena G., 5/26/17, Knoxville, Frierson, 52 pages.
http://www.tncourts.gov/sites/default/files/in_re__lena_g.pdf

COURT OF CRIMINAL APPEALS

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


degree murder and attempted first degree murder in connection with murder
of Sosa and shooting of his girlfriend, trial court erred in denying
defendants motion to suppress statement he gave to police when defendant
unequivocally and unambiguously invoked his right to remain silent, but his
request was not honored by interviewing detectives after defendant told
detectives, I aint got nothing else to say, first detective ceased questioning
and left room, but in only short span of just over nine minutes, second
detective entered room and resumed questioning defendant about same
crime without administering new Miranda warnings, and this detective
interrogated defendant multiple times over course of two hours; while
defendant received Miranda warnings from first detective and executed
valid waiver of his rights, there was no subsequent provision of Miranda
warnings before second detective resumed interrogation, and hence,
defendants statements to second detective should have been suppressed;
trial courts error was not harmless when states theory of motive in case
came entirely from defendants statement where he admitted having beef
with Sosa over stolen gun, and evidence against defendant was not so
overwhelming to make it unlikely that defendants statement had no effect
on jurys verdict; trial court erred in allowing state to play entire recorded
interrogation of defendants friend (Lovett) for jury as prior inconsistent
statement when, although prosecutor stated that he intended to use statement
to impeach Lovett, trial court did not give limiting instruction to jury that
statement could only be considering as reflecting upon Lovetts credibility,
and trial court failed to conduct jury-out hearing as required by TRE 803(26)
to determine whether statement was made under circumstances indicating
trustworthiness. State v. Lalone, 5/25/17, Knoxville, Easter, 33 pages.
http://www.tncourts.gov/sites/default/files/lalone_opinion.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


domestic assault and two counts of aggravated assault, trial court did not err
in failing to require state to make election of offenses with regard to two
aggravated assault convictions when defendants actions, i.e., he punched
and choked victim until she punched him in fact, defendant then threatened
to kill victim if he could not find his marijuana and exited room, and
defendant returned moments later and struck victim on head with revolver,
occurred in such close temporal and geographic proximity that they
constituted one act of aggravated assault; trial court erred by failing to merge
defendants two aggravated assault convictions when, while elements of two
types of aggravated assault are distinct, there was still only one assault and
one victim. State v. Anderson, 5/24/17, Jackson, Thomas, 10 pages.
http://www.tncourts.gov/sites/default/files/andersondoyanopn_1.pdf

CRIMINAL LAW: When charged offense is aggravated rape, which


involves nature of conduct crime, it is error for trial court to charge mental
state definition of reckless with respect to element of sexual penetration; in
case in which trial court instructed jury that all elements of offense of
aggravated rape are satisfied by culpable mental state of recklessness, error
was harmless when evidence was sufficient to prove intentional penetration,
prosecution argued only intentional penetration, and proof of reckless
penetration was never presented; defendants convictions for aggravated
rape, aggravated robbery, and especially aggravated kidnapping did not
violate due process. State v. Fleming, 5/23/17, Nashville, Woodall, 17 pages.
http://www.tncourts.gov/sites/default/files/flemingdewayneopn.pdf

CRIMINAL LAW: Rape of child is not lesser included offense of aggravated


rape of child. State v. Bolden, 5/23/17, Knoxville, Witt, 10 pages.
http://www.tncourts.gov/sites/default/files/michael_bolden_opinion.pdf

CRIMINAL PROCEDURE: In case in which defendants motion to


suppress result of his blood alcohol test was denied, after trial court found
that good faith exception to defendants forced blood draw existed, Court
of Appeals reversed, holding that no good-faith exception to exclusionary
rule existed at time of defendants stop, and Tennessee Supreme Court
remanded case for reconsideration in light of State v. Reynolds, 504 SW3d
283 (Tenn. 2016), officer acted with reasonable good-faith reliance on
binding precedent in effect at time of stop, and as such, trial courts denial of
defendants motion to suppress is affirmed; stop of defendants vehicle
occurred in 2012 when prevailing law relevant to issue provided that
compulsory breath or blood test, taken with or without consent of donor, was
permissible under exigent circumstances exception to warrant requirement
in 2013, U.S. Supreme Court clarified in Missouri v. McNeely, 133 SCt.
1552 (2013), that natural metabolization of alcohol in the bloodstream
does not create per se exigency justifying exception to Fourth Amendments
warrant requirement for non-consensual blood testing in all drunk-driving
cases. State v. Wilson, 5/24/17, Jackson, Wedemeyer, Woodall concurs in
results only, 8 pages.
http://www.tncourts.gov/sites/default/files/wilsoncopnremand.pdf

CRIMINAL SENTENCING: Juveniles sentence of life plus 16 years


imposed for first degree murder conviction is not tantamount to sentence of
life without parole; imposition of mandatory life sentence upon juvenile, i.e.,
sentence requiring service of 51 years before release, does not constitute
effective sentence of life without possibility of parole. State v. Gutierrez,
5/24/17, Nashville, Ogle, 22 pages.
http://www.tncourts.gov/sites/default/files/gutierrez_jonathan_opn.pdf
PUBLIC CHAPTERS

COMMERCIAL LAW: Newly enacted Tennessee Uniform Limited


Partnership Act applies to limited partnerships (LPs) created on or after
1/1/18 and LPs created before 1/1/18 that elect to be covered under act. 2017
PC 440, effective 1/1/18, 69 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0440.pdf

COMMERCIAL LAW: Securities Act is revised to permit qualified


individual who reasonably believes that financial exploitation of designated
adult has occurred, in cooperation with qualified individuals broker-dealer
or investment adviser, to notify Commissioner of Commerce and Insurance;
qualified individual may also notify relative of designated adult; broker-
dealer or investment adviser may delay disbursement from account of
designated adult; civil penalty is increased if victim of violation is elderly or
has mental disability. 2017 PC 424, effective 5/18/17, 17 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0424.pdf

FAMILY LAW: In any action for retroactive child support filed on or after
7/1/17, retroactive child support may not be awarded for period more than
five years from date action for support is filed unless court determines, for
good cause shown, that different award of retroactive child support is in
interest of justice. 2017 PC 419, effective 7/1/17, 3 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0419.pdf

TRIAL COURTS

INSURANCE: In suit by hospitals, medical centers, and parent company


(plaintiffs) who are all named insureds under Healthcare Umbrella Liability
Policy issued by defendant, lawsuit filed against plaintiffs arose out of
allegedly unnecessary cardiac procedures performed on numerous patients,
defendants construction of policy requires plaintiffs to pay $5 million self-
insured retention for each individual lawsuit before coverage is triggered,
plaintiffs construction of policy is that all Alabama lawsuits constitute one
medical incident, and all West Virginia lawsuits constitute one medical
incident, thus requiring payment of only one $5 million retention for each
group of lawsuits before coverage is triggered, plaintiffs application of
grammatical rules, and meaning derived from word choice and placement do
not lead to absurd result, and plaintiffs have demonstrated reasonable
construction of policy different from defendants construction; defendants
motion for summary judgment with respect to count seeking declaration of
coverage under policy is denied because ambiguity has been shown which
entitles plaintiff to discovery of facts extrinsic to policy text. Vaughan
Regional Medical Center LLC v. Steadfast Insurance Co., 4/25/17,
Davidson Chancery, Lyle, 23 pages.
http://www.tncourts.gov/sites/default/files/docs/vaughan_regional_medical_centerllc_v._steadfast_insurance_company_16-238-bc_-_4-25-17_order.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, truck driver, felt pop


and burning sensation in his right shoulder and neck while unloading freight
from his truck, and employer denied claim, asserting that employee engaged
in willful misconduct when he unloaded his truck without permission,
employer failed to prove elements of willful misconduct defense when
employee handbook did not contain absolute prohibition against unloading,
employees job description appears to anticipate that drivers may, at times,
have to unload truck, handbook requires only that driver get permission to
unload, employer failed to prove that employee knew there was danger in
unloading truck, employer failed to prove its bona fide enforcement of rule,
and employee had valid excuse for violating rule, i.e., there were no lumpers
and employer did not direct him to another facility. Dockery v. Morristown
Distribution Services Inc., 3/7/17, Kingsport, Addington, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1746&context=utk_workerscomp

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