TAM-BYTES

December 25, 2017

Vol. 20, No. 46

Editors’ note: This will be our last issue of TAM-Bytes as we will

be leaving the company on January 1 and will no longer be editing
TAM. It has been our pleasure and honor to bring TAM-Bytes to
you over the past 20 years, and we truly appreciate all your support
– Virginia Mayo, Tennessee Attorneys Memo editor and Jean
Simpkins, Tennessee Attorney Memo associate editor.

IN THIS WEEK’S TAM-Bytes

 Supreme Court affirms grant of summary judgment to defendant

home inspectors in case of first impression in which plaintiff, social
guest, was injured when he fell from second story deck, after collapse
of railing that had not been properly constructed but had recently been
inspected by home inspector hired by homeowner;
 Supreme Court rules definition of “reasonable charges” under
Hospital Lien Act set forth in West does not apply directly to
determination of “reasonable medical expenses” in personal injury
cases, and declines to alter existing law in Tennessee regarding
collateral source rule;
 Supreme Court holds that once husband or wife withdraws funds from
joint bank account held as tenants by entirety, funds cease to be held
by entirety;
 Supreme Court says Cowan and Jennings establish only that, if
validity of will disinheriting person bringing will contest has already
been established either by admission or judicial determination, then
person lacks standing to bring will contest;
 Supreme Court rules TCA 36-1-124(d), which requires any notice of
appeal filed in termination of parental rights case “be signed by the
appellant,” does not require notice of appeal to be signed personally
by appellant;
 Supreme Court refuses to adopt appeal-tolling doctrine or continuous
representation rule in determining whether legal malpractice case is
barred by statute of limitation;
  Supreme Court clarifies that correct legal standard for reviewing
whether trial court errs in conducting late-night proceedings is abuse
of discretion;
 Supreme Court holds theft statute applies to theft of real property by
occupation, seizure, and filing of deed;
 Workers’ Comp Panel adopts majority approach and holds that
employee whose employment is terminated remains covered by
workers’ compensation statutes for reasonable period of time for
employee to effectuate termination of employment such as by
gathering belongings and exiting workplace; and
 In case of first impression, Court of Appeals rules insurer did not have
duty to defend insureds in suit by buyers of insureds’ home for
negligent misrepresentation concerning property’s propensity to flood
because “negligence” and “negligent misrepresentation” claims
asserted against insureds do not arise from “occurrence” as that term
is defined in insurance policies.

SUPREME COURT

TORTS: When plaintiff, social guest, was injured when he fell from second
story deck, after collapse of railing that had not been properly constructed but
had recently been inspected by home inspector (defendant) hired by
homeowner, trial court properly granted summary judgment in favor of
defendant; plaintiff did not allege facts that would constitute actionable claim
of negligent misrepresentation involving risk of physical harm as plaintiff did
not prove that defendant gave false information as home inspector did not
affirmatively state that deck railing was safe; defendant did not owe or assume
duty of care toward plaintiff, and summary judgment was appropriate with
regard to negligent inspection claim when defendant did not undertake
building codes inspection, and there was no evidence that he voluntarily
assumed duty beyond what he owed to his clients. Grogan v. Uggla, 11/21/17,
Nashville, Page, partial dissent by Kirby, dissent by Lee, 29 pages.
http://www.tncourts.gov/sites/default/files/grogan.charles.corr_.opn_.pdf
http://www.tncourts.gov/sites/default/files/grogan.charles.sep_.conc_.diss_.opn_.pdf
http://www.tncourts.gov/sites/default/files/grogan.charles.sep_.diss_.opn_.pdf

DAMAGES: Definition of “reasonable charges” under Hospital Lien Act

(HLA) set forth in West does not apply directly to determination of
“reasonable medical expenses” in personal injury cases; West’s definition of
“reasonable charges” is limited in application to interpretation of HLA;
existing law in Tennessee regarding collateral source rule will not be altered;
plaintiffs may submit evidence of plaintiff’s full undiscounted medical bills
as proof of her “reasonable medical expenses,” and defendants are precluded
from submitting evidence of discounted rates for medical services accepted
by medical providers as result of plaintiff’s insurance; defendants remain
free to submit any other competent evidence to rebut plaintiffs’ proof on
reasonableness of plaintiff’s medical expenses, so long as defendants’ proof
does not contravene collateral source rule. Dedmon v. Steelman, 11/17/17,
Jackson, Kirby, unanimous, 45 pages.
http://www.tncourts.gov/sites/default/files/dedmon.jean_.opn_.pdf

PROPERTY: Once husband or wife withdraws funds from joint bank

account held as tenants by entirety, funds cease to be held by entirety; when
husband withdrew funds from couple’s joint account, those funds ceased to
be property held by entirety; certificate of deposit (CD) purchased with
withdrawn funds and issued to husband individually belonged only to
husband; when husband died, CD became part of husband’s estate and did
not pass outside estate to his surviving spouse. In re Estate of Fletcher,
12/6/17, Nashville, Lee, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/inreestateofcalverthughfletcher.opn_.pdf

PROPERTY: TCA 66-21-101 states only that statutory lien on personal

property, where lien statute does not specify method of enforcement, may be
enforced by original attachment of lien-subject property itself; statute does
not address how creditor might reach proceeds from sale of lien-subject
property, and it does not indicate whether there are other remedies possibly
available to creditor who holds statutory lien. Embraer Aircraft
Maintenance Services Inc. v. AeroCentury Corp., 11/27/17, Nashville,
Kirby, unanimous, 11 pages.
http://www.tncourts.gov/sites/default/files/embraeraircraftv.aerocentury.opn__0.pdf

ESTATES & TRUSTS: When properly distilled to factual circumstances in

which they arose, Cowan and Jennings establish only that, if validity of will
disinheriting person bringing will contest has already been established either
by admission or judicial determination, then person lacks standing to bring
will contest; this rule did not require dismissal of contestants’ will contest
for lack of standing when none of decedent’s wills have been judicially
determined to be valid, contestants have not admitted or conceded validity of
any of decedent’s wills, contestants have filed notice of contest as to
decedent’s 2013 will and have sought to amend notice to contest all of prior
wills proponents produced after this will contest was filed, all but one of
contestants would share in decedent’s estate under at least one of wills
predating 2012, and all of contestants would receive share of decedent’s
estate under laws of intestacy, and thus contestants have shown that they
would be entitled to share in decedent’s estate if no will existed and 2013
will were set aside. In re Estate of Brock, 11/22/17, Knoxville, Clark,
unanimous, 13 pages.
http://www.tncourts.gov/sites/default/files/inreestateofj.donbrock.opn_.pdf

FAMILY LAW: In child custody case, Court of Appeals usurped role of

juvenile court by declining to extend deference to juvenile court’s findings
when juvenile court properly considered appropriate statutory factors
governing best interest analysis; Court of Appeals erred in issuing mandate
immediately, rather than allowing 64 days to pass according to TRAP 42;
although issuance of immediate mandate is expressly allowed by rule, this
exercise of authority in child custody cases is generally not warranted absent
allegations of either potential or immediate danger to child. C.W.H. v.
L.A.S., 12/19/17, Knoxville, Page, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/c.w.h.v.l.a.s.opn_.pdf

FAMILY LAW: Signature requirement of TCA 36-1-124(d), which

requires any notice of appeal filed in termination of parental rights case “to
be signed by the appellant,” does not require notice of appeal to be signed
personally by appellant; because statute does not require appellant to sign
“personally” notice of appeal and does not distinguish appellant from his or
her attorney, word “appellant” includes attorney specifically authorized to
file notice of appeal on appellant’s behalf. In re Bentley D., 11/22/17,
Knoxville, Bivins, unanimous, 10 pages.
http://www.tncourts.gov/sites/default/files/inrebentleyd.opn_.pdf

CIVIL PROCEDURE: Appeal-tolling doctrine will not be adopted in

determining whether legal malpractice case is barred by statute of limitation;
continuous representation rule will not be adopted to toll running of statute
of limitation in legal malpractice case; instead, litigant who learns that it has
suffered cognizable legal injury and that this injury was caused by
negligence of its lawyer but who nevertheless continues to be represented by
that lawyer will be forever barred from bringing suit against lawyer unless it
files suit within one year after discovery of injury and its cause, final
judgment in underlying case is not required before there is actual injury for
purposes of accrual of litigation malpractice claim; instead, under
Tennessee’s discovery rule, in addition to actual or constructive knowledge
requirement, plaintiff must suffer actual or legally cognizable injury, which
depending on particular facts may or may not occur prior to final judgment.
Story v. Bunstine, 12/11/17, Knoxville, Page, unanimous, 25 pages.
http://www.tncourts.gov/sites/default/files/story.john_.opn_.pdf

CIVIL PROCEDURE: When decedent’s mother, in her capacity as her

unmarried son’s next of kin, filed suit seeking damages for his wrongful
death, case was settled and dismissed, nearly 20 months later, decedent’s
alleged minor child filed TRCP 60.02 motion to set aside order of
dismissal and to be substituted as plaintiff, and motion asserted that child
was decedent’s next of kin and proper party to pursue wrongful death
claim, based on decedent’s execution of acknowledgment of paternity and
Mississippi trial court order for support, trial court properly denied TRCP
60.02 motion; judgment was not void under TRCP 60.02(2); trial court
did not abuse discretion in ruling that TRCP 60.02 motion was not timely
filed when although son’s mother acted promptly upon learning that
decedent’s mother had settled wrongful death suit, she failed to make
appropriate inquiries or follow up with attorney after hiring him;
circumstances do not rise to level of extraordinary circumstances or
extreme hardship justifying relief under TRCP 60.02(5). Hussey v.
Woods, 12/18/17, Jackson, Lee, unanimous, 13 pages.
http://www.tncourts.gov/sites/default/files/hussey.derrick.opn_.pdf

CRIMINAL LAW: In case in which defendant, who fired weapon at men

standing in front of convenience store and struck young girl standing inside
store, claimed self-defense, legislature intended phrase “not engaged in
unlawful activity” in self-defense statute to be condition of statutory
privilege not to retreat when confronted with unlawful force; trial court bears
initial responsibility to determine whether defendant was engaged in
unlawful behavior when he or she used force in alleged self-defense
situation; defendant’s conduct of being felon in possession of firearm was
unlawful activity, but trial court’s jury instructions – trial court left
determination of whether defendant was engaged in unlawful activity to jury
but provided additional guidance on what conduct of defendant might
constitute unlawful activity – were erroneous; because no reasonable jury
would have accepted defendant’s self-defense theory, trial judge’s error was
harmless. State v. Perrier, 11/21/17, Jackson, Page, unanimous, 23 pages.
http://www.tncourts.gov/sites/default/files/perrier.antoine.opn_.pdf

CRIMINAL LAW: Tennessee’s theft statute applies to theft of real

property by occupation, seizure, and filing of deed to property in same way
it applies to other property; in case in which defendant physically entered
and occupied, for over week, vacant East Memphis house valued at more
than $2 million and filed documents with Shelby County Register of Deeds
Office purporting to reflect her ownership of property, evidence was
sufficient to convict defendant of theft of property over $250,000 and
aggravated burglary; fair market value is appropriate measure of value of
real property defendant obtained. State v. Gentry, 11/29/17, Jackson, Clark,
unanimous, 18 pages.
http://www.tncourts.gov/sites/default/files/gentry.tabitha.opn_.pdf
CRIMINAL PROCEDURE: In case involving questions about jury
deliberations that continued into early morning hours, defense counsel
waived appellate review by failing to contemporaneously object to late-night
deliberations, and issue cannot be reviewed under plain error doctrine given
fact there is no clear rule in Tennessee on how long judges should allow
juries to deliberate; informal discussion that took place in late afternoon on
day of trial was not formal objection, and defense had multiple opportunities
– including when defendant returned to court, when jury instructions were
read, when jury asked question, and when jury asked for dinner – to object
but remained silent on issue of continuing deliberations; correct legal
standard for reviewing whether trial court errs in conducting late-night
proceedings is abuse of discretion – trial court abuses its discretion when it
applies incorrect legal standard, reaches conclusion that is not logical, bases
its decision on clearly erroneous assessment of evidence, or uses reasoning
that causes injustice to complaining party. State v. Walls, 11/9/17, Nashville,
Page, concurrence by Lee, 18 pages.
http://www.tncourts.gov/sites/default/files/walls.susan_.opn_.pdf
http://www.tncourts.gov/sites/default/files/wall.susan_.sep_.opn_.pdf

CRIMINAL SENTENCING: Evidence was sufficient to support finding of

premeditation in connection with defendant’s three first degree murder
convictions and one attempted murder conviction when there was no
indication of provocation on part of any of victims, defendant reloaded his
weapon before firing fatal shot into head of one of victims, and defendant
left home with his young daughter without rendering aid to any of victims;
death sentences imposed in this case were not excessive or disproportionate
when compared to penalty imposed in similar cases; this court declines to
deviate from well-settled precedent that appropriate pool of cases to be
considered in proportionality review includes only those cases in which state
sought death penalty, court held sentencing hearing, and jury returned
verdict, regardless of outcome. State v. Clayton, 11/20/17, Jackson, Page,
concurrence by Lee, 40 pages.
http://www.tncourts.gov/sites/default/files/clayton.sedrick.opn_.pdf
http://www.tncourts.gov/sites/default/files/clayton.sedrick.sep_.opn_.pdf

WORKERS’ COMP PANEL

WORKERS’ COMPENSATION: When employee orally informed her

supervisor that she was quitting, turned to leave store, and fell in puddle of
water on her way out of store, employee remained employed at time alleged
injury occurred for reasonable length of time to effectuate termination of her
employment so she was still employed for purposes of workers’
compensation statutes; employee whose employment is terminated remains
covered by workers’ compensation statutes for reasonable period of time for
employee to effectuate termination of employment such as by gathering
belongings and exiting workplace. Duck v. Cox Oil Co., 9/19/17, Jackson,
Kirby, 12 pages.
http://www.tncourts.gov/sites/default/files/duckopn.pdf

WORKERS’ COMPENSATION: Employee who fell from stool on

9/21/13, injuring her left ankle and knee, was presumed to resign and did not
have meaningful return to work, thereby capping her workers’ comp award
at 1.5 times impairment rating, when on 3/27/14, employee had not yet
reached maximum medical improvement, she was still under treatment and
awaiting surgery, employee testified she returned to work after her initial
injury and did best she could to perform her duties, but her physical
limitations prohibited her from optimum performance, employee testified
that employer did not accommodate her work restrictions, she asserted that
she did not want and did not intend to resign until she was called into
supervisor’s office and was told she needed to step down from her position
and accept different position earning less money than she made prior to her
injury, supervisor completed majority of resignation documents, noting
“other” as purported reason for employee’s resignation, and employee
testified that she noted “other” because of her injuries and her inability to
perform her job within her restrictions; evidence supported trial court’s
award of 60% permanent disability of left leg when employee was 63 years
old, almost all of her prior training and work experience required extended
periods of standing or walking activities that were severely limited by
permanent restrictions, employee had applied for jobs at several other
department stores, spas, and other places but was not offered job because of
her permanent restrictions, and despite limited employment she had with
employer as makeup artist, her knee continued to swell every day. Hunt v.
Dillard’s Inc., 12/13/17, Jackson, Hurd, 12 pages.
http://www.tncourts.gov/sites/default/files/huntopn.pdf

WORKERS’ COMPENSATION: When employee, industrial bricklayer,

developed weakness in his arms and legs and balance problems in fall 2012,
he sought medical care for these problems and was eventually referred to
neurosurgeon, who determined that employee had herniated cervical disc
that required immediate surgery, employee and his wife testified that they
provided oral notice of work injury to employer’s officials both before and
after surgery, employee’s attorney sent letter to employer on 6/6/13 asserting
that employee had sustained compensable injury, and employer asserted that
this was its first notice that employee had allegedly sustained work-related
injury, trial court correctly found that notice was not given to employer;
employee submitted that employer should have surmised that his spinal
problem was work-related based on employee’s reports to employer that
employee’s symptoms were related to spinal problem and that surgery was
required to treat it, as well as her periodic updates of employee’s medical
treatment and condition, but employer did not have actual notice that
employee had incurred work-related injury, even though they knew he was
experiencing medical issues. Pevahouse v. Gerdau Ameristeel Inc.,
12/12/17, Jackson, Russell, 9 pages.
http://www.tncourts.gov/sites/default/files/pevahouseopn.pdf

WORKERS’ COMP APPEALS BOARD

WORKERS’ COMPENSATION: When employee, machine operator at

automobile parts manufacturing facility, was performing her job duties when
she stepped off her work mat onto concrete floor, her right foot slid, her
right leg went into air, and she fell, striking her right ankle on concrete floor,
trial court determined at prior expedited hearing that employee did not come
forward with sufficient evidence to support preliminary finding that her
accident arose primarily out of her employment and denied benefits, order
was not appealed, and employer filed motion for summary judgment, trial
court erred in granting motion; although employee was unable to present
direct evidence as to cause of her slip-and-fall, she presented testimony that
area around her workstation was dusty, she described substance as “oily
dust,” she testified that when her foot touched concrete beyond her work
mat, it slid out from under her, and she testified that her clothes were
covered in dust and oil after fall, employee’s testimony, although
circumstantial in nature, could support reasonable inference that her slip-
and-fall was primarily caused by hazard incident to her employment,
namely, oily dust produced by extrusion process. LaGuardia v. Total
Holdings USA Inc., 11/29/17, Conner, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1963&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1907&context=utk_workerscomp

COURT OF APPEALS

TORTS: When plaintiff filed medical malpractice, wrongful death action

alleging that decedent died on 9/29/04 because of delay in treatment of
bowel perforation she developed as complication of colon surgery performed
by Dr. Branson, and jury found in favor of plaintiff and awarded damages of
$750,000, allocating 50% of fault to hospital, 10% to Dr. Anderson (private
radiologist whose practice group was under contract with hospital), and 40%
to Branson, trial court properly granted partial summary judgment to
plaintiff by finding that Anderson was apparent agent of hospital when
decedent relied on hospital to perform radiology services – decedent never
met or spoke to Anderson, CT scanner and “radiology department” were
within hospital, hospital employees transported decedent to CT scanner,
hospital employees explained CT scan procedure to decedent, hospital
employees performed CT scan, hospital employees took dictation for CT
scan report, hospital maintained CT scan and CT report, and CT scan
displayed hospital’s name, address, and phone number and did not mention
Anderson’s radiology group. Beard v. Branson, 11/8/17, Nashville,
Clement, 15 pages.
http://www.tncourts.gov/sites/default/files/beardl.remand.opn_.pdf

TORTS: When plaintiff, Glenn Funk, Davidson County district attorney,

filed defamation suit against television station NewsChannel 5, WTVF in
Nashville and station’s chief investigative news reporter Phil Williams
(defendants), defendants filed motion to dismiss, claiming that their reports
were constitutionally protected speech, were privileged as fair and accurate
report of pleadings and documents filed in two other lawsuits, and did not
contain false or defamatory statements, plaintiff served interrogatories and
requests for documents on defendants in effort to discover defendants’
investigative files, and defendants objected on grounds of relevance and
Tennessee fair report privilege, trial court erred in granting motion to
compel; under current state of law, fair report privilege cannot be defeated
by showing of actual malice by plaintiff; since actual malice is not
component of fair report privilege, plaintiff cannot defeat privilege by
presenting evidence of actual malice, and defendants are not required to
show absence of actual malice in asserting privilege; if defendants can show
that broadcasts and publications at issue were “a fair and accurate
summation of the proceeding[s]” and that they display[ed] balance and
neutrality,” they will be entitled to rely on fair report privilege as defense to
plaintiff’s defamation claims; other than person or document(s) news
gatherer identifies as source(s) of his or her publication or broadcast, TCA
24-1-208(a) of Shield Law protects news gatherer from having to produce
any other information or documents from his or her investigative files, and
trial court’s order granting plaintiff’s motion to compel defendants to
describe their investigations and produce all documents they obtained or
relied on in their investigations of two news stories is contrary to this
interpretation of statute. Funk v. Scripps Media Inc., 11/3017, Nashville,
Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/funk.glenn_.opn_.pdf
TORTS: When defendant principal received anonymous phone call, caller
said she was nurse and grandparent of child that she had just picked up at
school, caller reported that she had seen teacher, as it turned out, plaintiff,
who appeared to caller to be in altered state, caller said plaintiff was putting
children in danger, principal decided to investigate caller’s claim, she asked
plaintiff, school nurse, and Student Recourse Officer to come to plaintiff’s
classroom, all three observed plaintiff, each considered her to be in altered
state, they described her as appearing drowsy, slow, and walking with
difficulty, they discovered in her bags seven bottles of medications, all
prescribed for plaintiff, in properly-marked childproof containers, plaintiff
alleged that principal stated, “I believe what we’re looking at is an addiction
to prescription drugs,” principal asked school nurse, “would you want your
child in her classroom next year knowing that she’s addicted to prescriptions
like this?,” and plaintiff filed suit against principal, trial court properly
granted principal summary judgment on defamation claim as alleged
statement, “I believe what we are looking at is an addiction to prescription
drugs,” is not actionable, because it is statement of mere opinion, and if it
was made, if was true, because principal genuinely held such belief at time,
based on her investigation, assuming that statement was uttered, plaintiff
still cannot demonstrate that it was uttered with actual malice, and plaintiff
cannot establish that statements were “published” to third party; trial court
properly granted summary judgment on plaintiff’s claims of invasion of
privacy by intrusion into her seclusion when reasonable person could not
find principal’s actions in searching purse and directing school nurse to write
list of found medications was so “highly offensive” as to support suit for
invasion of privacy by intrusion into seclusion; trial court properly summary
judgment on plaintiff’s claim for intentional of emotional distress. Certain v.
Goodwin, 11/17/17, Nashville, Susano, 21 pages.
http://www.tncourts.gov/sites/default/files/certain.jerretta.opn_.pdf

TORTS: When plaintiff went to business premises of Accurate C & S Services,

Inc. to undergo drug testing, as plaintiff exited his car in Accurate’s parking lot, he
was talking on his cell phone, he walked to front door of premises and stood with
his back to door while he concluded his phone call, after concluding his phone call,
plaintiff turned to his left to open front door of premises, plaintiff stepped through
doorway of premises with his right foot with no problem, when plaintiff stepped
with his left foot, his toe caught on rise in door frame, plaintiff tripped and fell,
there is raised metal frame at entryway of premises, and plaintiff filed suit against
Accurate and R&R Properties of Tennessee, LLC from whom Accurate leased
premises, alleging threshold at premises was unreasonably dangerous, trial court
properly granted defendants summary judgment when plaintiff had no proof of any
prior falls at this location, plaintiff offered no proof as to height of rise in
doorframe, trial court found that photographs depict what “appears to be typical
entranceway to an interior of a building,” plaintiff presented no proof to contrary,
and, even more importantly, plaintiff failed to produce any evidence showing that
rise in doorframe constituted dangerous condition giving rise to duty to warn. Buck
v. Accurate C & S Services Inc., 11/6/17, Knoxville, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/ray_w._buck_v._accurate_c__s_services_inc._et_al._with_correction.pdf

TORTS: When plaintiff, customer of tanning salon, injured herself upon

exiting salon when she fell while stepping off curb onto snow and ice-
covered portion of parking lot where she had parked her car, plaintiff filed
suit against owners of tanning salon and of shopping center, as well as
ground keeping service, alleging that defendants negligently failed to clear
ice and snow from parking lot or warn her of potential danger, trial court
properly granted summary judgment to owners of tanning salon; plaintiff
contended that policy of owners of tanning salon of instructing employees
not to park in spaces directly in front of tanning salon so that spaces would
be free for customers evidenced level of “control” over parking lot sufficient
to hold owners of tanning salon responsible for clearing frozen precipitation
from common areas, but policy was attempt to control employees, not
parking spaces, and plaintiff’s “proffered” evidence was insufficient to
establish duty vis a vis assumption of control theory of liability under these
facts; spaces in front of tanning salon do not constitute part of tanning salon
approach for purposes of establishing duty element of plaintiff’s claim.
Newell v. First State Bank Inc., 12/7/17, Jackson, Goldin, 7 pages.
http://www.tncourts.gov/sites/default/files/newelltinaopn.pdf

TORTS: When plaintiff began contacting Memphis Animal Services to

report encounters between her family and her neighbor’s unleashed dog,
City of Memphis (City) determined that dog was appropriately restrained in
neighbor’s yard by invisible electric fence, and plaintiff filed suit against
City and five employees of Memphis Police Department and Memphis
Animal Services (employees) asserting that her neighbor allowed his dog to
roam unleashed in his yard and that City’s willingness to allow dog to be
restrained by only invisible electric fence caused her emotional distress and
violated her constitutional rights, trial court properly dismissed suit for
failure to state claim upon which relief could be granted; facts alleged by
plaintiff failed to form basis of “intentional or reckless” conduct by
employees to sustain claim for intentional infliction of emotional distress;
plaintiff’s complaint fails to allege facts to support application of special
duty exception to public duty doctrine. Greenwood v. City of Memphis,
11/6/17, Jackson, Gibson, 8 pages.
http://www.tncourts.gov/sites/default/files/greenwoodcopn.pdf
INSURANCE: When buyers of insureds’ home filed suit alleging that insureds
made negligent misrepresentations concerning property’s propensity to flood,
buyers sought to recover damages they sustained from flooding that occurred
after sale, and insurer filed suit seeking declaration that insurer had no duty to
defend insureds, “negligence” and “negligent misrepresentation” claims asserted
against insureds do not arise from “occurrence” as that term is defined in
insurance policies, so there is no coverage and insurer has no duty to defend
insureds in other action; occurrence that caused property damage was flooding,
not misrepresentation by insureds. Fire Insurance Exchange v. Maxwell,
11/15/17, Nashville, Clement, 11 pages.
http://www.tncourts.gov/sites/default/files/erieinsurancev.maxwell.g.opn_.pdf

COMMERCIAL LAW: While signatory to contract containing arbitration

provision should be estopped from avoiding arbitral forum if signatory seeks
to hold nonsignatory liable pursuant to underlying agreement, estoppel is not
proper merely because signatory’s claim “references” or factually “presumes
the existence of” contract containing arbitration provision. Blue Water Bay
at Center Hill LLC v. Hasty, 11/27//17, Nashville, Goldin, 23 pages.
http://www.tncourts.gov/sites/default/files/blue_water_bay_et_al._v.hasty_et_al._opn.pdf

FAMILY LAW: In case in which at time of divorce, father was designated

as primary residential parent of couple’s three children, and nine years later,
mother filed petition for modification of custody in order to designate her as
primary residential parent, trial court applied wrong standard in making its
determination regarding whether there had been material change in
circumstance and erred in assessing best interest of children; because
evidence was sufficient to support finding of material change in
circumstance based upon multiple factors that affect children’s well-being in
meaningful way, including changes in parents’ work schedules, father’s
failure to comply with portions of current parenting plan, and father’s lack of
attention to children’s medical needs, and based on best interest of three
children, evidence preponderated against trial court’s finding that father
should remain primary residential parent. Wilson v. Phillips, 11/15/17,
Nashville, Bennett, 37 pages.
http://www.tncourts.gov/sites/default/files/wilson.priscilla.opn_.pdf

FAMILY LAW: Because each parents’ child support obligation is offset

based upon number of days he or she actually exercises parenting time,
Child Support Guidelines indicate that child support worksheets should
reflect “number of days each child spends with each parent.” State ex rel.
Schrita O. v. Robert T., 11/16/17, Jackson, Goldin, partial dissent by
Clement, 15 pages.
http://www.tncourts.gov/sites/default/files/stateexrelschritaoopn.pdf
FAMILY LAW: Evidence preponderated against trial court’s determination
that husband’s alimony in futuro obligation should be reduced when
husband failed to prove substantial and material change in circumstances –
only significant change since divorce was that husband’s income has
increased, while wife’s income has remained same; case is remanded to trial
court with instructions to reinstate alimony award as set forth in final
divorce decree. Arrubias v. Baker, 12/11/17, Knoxville, Clement, 10 pages.
http://www.tncourts.gov/sites/default/files/kim_covarrubias_v._gerald_edward_baker.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In first degree murder case, trial court committed

reversible error by preventing defendant from admitting statements made by
Brown, one of defendant’s co-defendants, regarding victim’s murder; it was
not necessary for Brown to make full confession in order for her statements
to qualify as statements against interest in accordance with TRE 804(b), and
as such, trial court erred in determining that Brown needed to implicate
herself in victim’s robbery in order for her statements to be admissible. State
v. Young, 12/7/17, Knoxville, Thomas, 21 pages.
http://www.tncourts.gov/sites/default/files/young_lisa_kayopn.pdf

CRIMINAL LAW: In first degree murder case, trial judge erred in failing to
instruct jury as to self-defense when two of three eyewitnesses testified that
defendant was primary aggressor, reaching for his gun, which caused victim
to react in self-defense. State v. Boswell, 12/5/17, Jackson, Dyer, 12 pages.
http://www.tncourts.gov/sites/default/files/boswell_coynick_opn.pdf

CRIMINAL PROCEDURE: In drug case, trial court erred in granting

defendant’s motion to suppress when facts set forth in affidavit in support of
search warrant established informant’s veracity and basis of knowledge,
both of which remain highly relevant considerations under totality-of-the-
circumstances analysis; affidavit provided magistrate with substantial basis
for determining that issuance of search warrant would result in discovery of
synthetic cannabinoids on premises. State v. Starnes, 11/29/17, Jackson,
Woodall, 6 pages.
http://www.tncourts.gov/sites/default/files/starnes_rodney_paul_ii_opn.pdf
BOARD OF JUDICIAL CONDUCT

PROFESSION OF LAW: Madison County General Sessions Judge Christy

R. Little received public reprimand in connection with her unexplained
tardiness for her court dockets. In re Little, 11/3/17, Craft, 2 pages.
http://www.tncourts.gov/docs/documents/board-judicial-conduct/judge-christy-little-public-letter-reprimand-admin2017-00011

PROFESSION OF LAW: White County General Sessions Judge Sam

Benningfield received public reprimand in connection with three complaints –
one complaint involving threat, during probation violation hearing, to end
house arrest program in his court and order persons currently under house
arrest to be put in jail if defense attorney did not withdraw valid objection, and
two complaints based on Benningfield’s offer of sentence credit to male
inmates who obtained vasectomies and female inmates who received
nexplanon birth control implants. In re Benningfield, 11/20/17, Craft, 5 pages.
http://www.tncourts.gov/docs/documents/board-judicial-conduct/public-reprimand-judge-sam-benningfield-2017nov20

ATTORNEY GENERAL OPINION

GOVERNMENT: Motorboats carrying passengers for hire that are

classified as inspected vessels under federal scheme and have satisfied
applicable requirements are currently exempted from licensing and
inspection requirements under Tennessee law; proposed legislation would
undo this exemption for motorboats carrying passengers for hire in tourist
resort counties and, for that reason, would likely be preempted. Attorney
General Opinion 17-45, 10/9/17, 8 pages.
https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2007/op07-045.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 state’s web site by clicking here:
www.tncourts.gov