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2013 CLE CALENDAR Onsite Event Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal Audio Conferences “All is Fair (Use) in Love & Copyright: Recent Developments in Copyright Suits,” 60-minute webinar presented by Stephen Zralek, Nashville attorney, on Thursday, April 4 at 2 p.m. (Central), 3 p.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com
IN THIS WEEK’S TAM-Bytes * Supreme Court sets forth three procedural vehicles for challenging validity of will based on allegation that its execution violated contract to make mutual wills; * Supreme Court holds trial court did not err by providing curative instruction rather than directly informing jury that defendant had been acquitted of two counts of aggravated robbery, after those charges were dismissed at conclusion of all proof; * Supreme Court, in 3-2 decision, says, as general rule, if officer’s activation of blue lights is not used as show of authority directed at particular person, officer is acting within community caretaking function and need not support his or her actions with reasonable suspicion or probable cause; * Supreme Court adopts two-prong inquiry to guide analysis when post-conviction petitioner argues that due process requires tolling Post-Conviction Procedure Act’s statute of limitation based on conduct of his or her lawyer; * Court of Appeals holds certificate of good faith requirement applies to medical malpractice action commenced in general sessions court; and
* Court of Appeals, in fee dispute between two law firms, says lack of communication provides objectively reasonable basis for terminating attorney even if attorney was otherwise competently performing his or her legal duties.
SUPREME COURT ESTATES & TRUSTS: Three procedural vehicles for challenging validity of will based on allegation that its execution violated contract to make mutual wills are claim against estate, will contest, and action for specific performance of contract. In re Estate of Brown, 3/22/13, Knoxville, Koch, concurrence by Wade, 11 pages.
CRIMINAL PROCEDURE: In trial involving multiple charges, trial court did not err by providing curative instruction rather than directly informing jury that defendant had been acquitted of two counts of aggravated robbery, after those charges were dismissed at conclusion of all proof; it is sufficient for trial court to inform jury that dismissed charges have been removed from indictment, that no instruction concerning dismissed charges will be provided, and that jury should not speculate as to removal of dismissed charges or absence of instructions on dismissed charges; trial court, if requested to do so, should also provide appropriate limiting instruction as to purpose of evidence related to dismissed charges. State v. Little, 3/22/13, Knoxville, Wade, unanimous, 17 pages.
CRIMINAL PROCEDURE: Although activation of blue lights on police vehicle ordinarily triggers stop or seizure, thereby implicating constitutional protections, totality of circumstances must be considered to determine whether police officer was acting within community caretaking role, which is concept separate and distinct from investigation of possible criminal activity; as general rule, if activation of blue lights is not used as show of authority directed at particular person, officer is acting within community caretaking function and need not support his or her actions with reasonable suspicion or probable cause. State v. Moats, 3/22/13, Nashville, Wade, dissent by Clark & Koch, 3-2, 31 pages.
CRIMINAL PROCEDURE: Henceforth, when post-conviction petitioner argues that due process requires tolling Post-Conviction Procedure Act’s statute of limitation based on conduct of his or her lawyer, two-prong inquiry of Holland v. Florida, 130 SCt 2549 (2010), and Maples v. Thomas, 132 SCt 912 (2012), should guide analysis; petitioner is entitled to due process tolling upon showing that he or
she has been pursuing his or her rights diligently, and that some extraordinary circumstance stood in his or her way and prevented timely filing. Whitehead v. State, 3/21/13, Jackson, Koch, dissent by Holder, 26 pages.
WORKERS’ COMP PANEL WORKERS’ COMPENSATION: When employee injured his neck on job in 2005, two-level cervical spinal fusion surgery was performed, trial court awarded employee workers’ comp benefits and future medical benefits, modified judgment designated Dr. Lanford as employee’s authorized physician for future medical treatment, dispute arose less than two months after entry of trial court’s order as to employee’s medical treatment, Lanford recommended that employee undergo “anterior cervical fusion up one level,” workers’ comp insurer for employer declined to pay for recommended surgery until employee underwent second opinion examination, employee decided to undergo recommended surgery and to seek coverage through his wife’s health insurer, surgery was performed, employee was released to go home, employee suffered subarachnoid hemorrhage, workers’ comp insurer refused to pay for medical expenses, and employee filed petition seeking to require workers’ comp insurer to pay medical expenses related to both surgery and hemorrhage, evidence did not preponderate against trial court’s finding that hemorrhage was not related to second cervical fusion surgery necessitated by employee’s 2005 work injury. Welcher v. Central Mutual Insurance Co., 3/21/13, Nashville, McGinley, 11 pages.
WORKERS’ COMPENSATION: In case in which employee alleged that his pre-existing heart failure was permanently worsened by accidental inhalation of cement dust on job and in which workers’ compensation insurance carrier for employer asserted that worsening of heart failure was natural progression of condition and that inhalation event had no permanent effect on employee, trial court did not abuse discretion by choosing to accredit opinion of Dr. Golding, cardiologist who testified that employee’s pre-existing condition made him more susceptible to heart muscle damage from oxygen deprivation, over testimony of Dr. Roseman, cardiologist who testified that it is “scientifically impossible” that hypoxic event could advance pre-existing diastolic heart dysfunction to systolic dysfunction. Lawrence v. Midwestern Insurance Alliance, 3/19/13, Knoxville, Daniel, 10 pages.
COURT OF APPEALS WORKERS’ COMPENSATION: When plaintiff, employee of real estate and auction company, was injured while helping managing broker of company move cattle panels on managing broker’s personal farm, plaintiff filed workers’ compensation claim against company and its insurer, plaintiff also filed tort action against managing broker and broker’s son, who was called to assist after plaintiff’s injury occurred, workers’ comp action was settled, pursuant to court-approved settlement agreement, plaintiff released and discharged company and its insurer, as well as their subsidiaries, affiliates, officers, directors, employees, agents, and representatives “from any and all further liability and indemnity, under the terms and provisions of the Workers’ Compensation Law of the State of Tennessee, at common law or otherwise,” and managing broker and his son filed joint motion for summary judgment to dismiss plaintiff’s tort claims, trial court properly granted managing broker summary judgment as managing broker was employee of company when plaintiff sustained injuries; trial court erred in granting managing broker’s son summary judgment as he was not employee of company at time of incident, and hence, plaintiff’s claims against him are claims against third party, not employer. Ridenour v. Carman, 3/15/13, MS, Clement, 9 pages.
TORTS: When plaintiff filed medical malpractice case in general sessions court, general sessions court granted defendants’ motions to dismiss based on plaintiff’s failure to comply with pre-suit notice and certificate of good faith requirements under Tennessee Medical Malpractice Act (TMMA), and plaintiff sought de novo appeal to circuit court, paid $211.50 to general sessions court clerk and paid additional cash bond of $250, circuit court erred in concluding that it lacked subject matter jurisdiction to consider appeal because plaintiff failed to file surety bond; while plaintiff files “civil warrant” in order to commence civil action in general sessions court, certificate of good faith requirement under TMMA applies to “any medical malpractice action” filed “in any court of this state,” not only those actions commenced by filing “complaint” in circuit court; circuit court did not abuse discretion by refusing to excuse plaintiff’s noncompliance with certificate of good faith requirement. West v. AMISUB (SFH) Inc., 3/21/13, WS, Farmer, partial dissent by Highers, 18 pages.
COMMERCIAL LAW: When two law firms entered into contract whereby both firms would jointly represent client as plaintiff in personal injury suit, client discharged one of law firms (plaintiff) two years later, other firm (defendant) continued to represent client, case settled over one year later, defendant retained
entire contingency fee, plaintiff filed suit against client and defendant, and defendant claimed that plaintiff was limited to quantum meruit, trial court did not err in granting defendant summary judgment; there was no genuine issue of material fact as to whether client actually lost confidence in its relationship with plaintiff when client felt mistreated by at least one attorney at plaintiff, and this fact was sufficient to demonstrate that client actually, subjectively, lost confidence in its relationship with plaintiff; lack of communication provides objectively reasonable basis for terminating attorney even if attorney was otherwise competently performing his or her legal duties; because client’s loss of confidence was rooted in objectively reasonable basis, his termination of plaintiff was for cause, and hence, plaintiff was limited to recovering quantum meruit and was not entitled to recover full contract amount of one-fourth of contingency fee. Hill Boren P.C. v. Paty, Rymer & Ulin P.C., 3/19/13, WS, Highers, 26 pages.
PROPERTY: In case in which property owners sued utility district for damages and injunction as result of excessive use of easement across property owners’ land by utility district’s assignees, trial court erred in dismissing complaint for failing to state cause of action for which relief can be granted; property owners, having alleged damages to their property as result of use of easement by excessive use beyond original purpose, have stated claim for which relief can be granted. Russell v. Hendersonville Utility District, 3/20/13, MS, Cottrell, 5 pages.
FAMILY LAW: Trial court did not err in finding that material change in circumstances necessitated modification in parties’ permanent parenting plan when parties ignored terms of parenting plan and lived together with child as they had before divorce in 2006, but mother was “essentially and abruptly removed” from child’s life in 11/09 after years of liberal visitation with child; trial court did not err in modifying parenting plan – which originally designated father as child’s primary residential parent but did not provide for any visitation with mother – to provide mother with 140 days of visitation with child. Graham v. Graham, 3/21/13, ES, McClarty, 15 pages.
CIVIL PROCEDURE: In case in which following plaintiff’s death and filling of suggestion of death in trial court, no motion to substitute party was made within 90-day period set out in TRCP 25.01, trial court determined that failure to file motion for substitution of party was not result of excusable neglect and granted TRCP 25.01 motion to dismiss suit, and trial court subsequently also granted plaintiff’s motion for voluntary dismissal under TRCP 41.01, trial court erred in failing to dismiss case with prejudice pursuant to TRCP 25.01 once it determined
that failure to move for substitution of party was not product of excusable neglect; trial court had no discretion or authority to allow revival of case once it was rendered moribund under TRCP 25.01. Dobbins v. Green, 3/20/13, WS, Stafford, 7 pages.
COURT OF CRIMINAL APPEALS CRIMINAL LAW: Defendant’s dual convictions for especially aggravated kidnapping and aggravated rape did not violate double jeopardy; although defendant’s actions – defendant pulled victim into trailer, took her car keys, threatened her life, cut her with knife, chased her as she fled to seek help from neighbors, grabbed her by her ankles as she attempted to reach neighbor’s door, and pulled her across sidewalk – fairly raised issue of whether they were incidental to aggravated rape, given fact that only reasonable conclusion to be drawn from evidence was that defendant’s actions were well beyond that necessary to consummate rape, lack of instruction as required by State v. White, 362 SW3d 559 (Tenn. 2012), was harmless error. State v. Hulse, 3/19/13, Knoxville, Tipton, 22 pages.
CRIMINAL PROCEDURE: Trial judge properly denied defendant’s motion to suppress her statements to police when defendant knowingly waived her Miranda rights before speaking with officers; neither United States Constitution nor Tennessee Constitution mandates that criminal suspect be apprised of every possible consequence of Miranda waiver; there is no authority supporting requirement that defendant be informed of purpose and scope of pending investigation prior to executing knowing waiver of his or her Miranda rights. State v. Myers, 3/18/13, Knoxville, Thomas, 11 pages.
CRIMINAL PROCEDURE: In case in which petitioner was convicted of premeditated first degree murder and sentenced to death, post-conviction court properly denied defendant post-conviction relief; counsel does not have constitutional duty to present mitigation evidence at penalty phase of capital trial but has duty to investigate and prepare for both guilt and penalty phases; counsel was not deficient in failing to present “rational mitigation theory” during penalty phase of trial when, based on their investigation, trial counsel determined that their mitigation strategy should be to show that petitioner had life worth saving and did not deserve death penalty, and evidence of petitioner’s and his father’s drug dealing and his father’s arrests and infidelity would likely have undercut mitigating value
advanced by petitioner and his family that petitioner came from good home and had close-knit family. Robinson v. State, 3/20/13, Jackson, Page, concurrence by Woodall, 118 pages.
CRIMINAL PROCEDURE: When petitioner challenged his 1995 attempted aggravated sexual battery conviction based upon sanctions imposed upon him by 2004 and 2007 changes to sexual offender registration law, habeas corpus court properly dismissed petition; totality of restrictions placed upon sexual offender whose victim was minor qualifies as restraint on liberty for purposes of pursuing habeas corpus relief, but applicable restraints imposed upon petitioner by sexual offender registration laws do not equate to extension of his sentence. Doe v. Gwyn, 3/19/13, Knoxville, Witt, 10 pages.
ATTORNEY GENERAL OPINIONS TAXATION: Proposed bill, as amended, which would amend TCA 67-5-601 to set forth rationale for establishing lower values for property that generates electricity using geothermal, hydrogen, solar, or wind energy sources due to intermittent nature of these energy sources that results in restricted use of property, is constitutionally defensible as written. Attorney General Opinion 13-19, 3/11/13, 4 pages.
GOVERNMENT: Proposed bill, which would condition police powers conferred by TCA 49-7-118 upon institution structuring its financially supported student organizations in manner provided by bill, would likely be held facially constitutional as applied to state institutions of higher learning; as applied to private institutions, proposed bill is constitutionally suspect because it imposes possible unconstitutional condition on receipt of valuable state benefit. Attorney General Opinion 13-20, 3/13/13, 5 pages.
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