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TAM-BYTES October 21, 2013 Vol. 16, No.

42
2013 TAM CLE CALENDAR

Audio Conferences
Portability in Tennessee: Navigating the New Estate Planning Landscape, 60minute webinar presented by Rick Nickels, with Bone McAllester Norton PLLC, on Tuesday, November 12 at 2 p.m. (Central), 3 p.m. (Eastern). TennCare/Medicaid: Where We Are and Where We're Headed, 60-minute webinar presented by Tim Takacs, Hendersonville attorney, on Thursday, November 14 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

NASHVILLE FACULTY (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs
Lyle, and Judge Tim Easter; and attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

TENNESSEE WORKERS COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 WHERE: The Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers comp system; hear about issues arising with future medical benefits, causation, and pain management; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13

\ FAMILY LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, December 5-6 WHERE: Nashville at the Nashville School of Law *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit FACULTY: Chancellor James F. Butler, Judge Robert L. Childers, and Judge Phillip
Robinson; attorneys Amy J. Amundsen, Rosemary Frank, David Garrett, Barry Gold, Jimmy Helton, Lewis Jenkins, Marlene Moses, Kevin Shepherd, Greg Smith, and Jacob Thorington For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/family-law-13

TENNESSEE TORT LAW CONFERENCE WHEN: Friday, December 13 WHERE: Nashville at the Nashville School of Law *Earn up to 7.5 hours of CLE hours, including 1 hour of DUAL credit FACULTY: Davidson County Circuit Judge Tom Brothers, Laura Bishop Baker, Brandon
Bass, Robert Burns, Daniel Clayton, Keith Dennen, Candi Henry, and Bryan Moseley For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-tort-law

IN THIS WEEKS TAM-Bytes Supreme Court says TCA 36-6-101(a)(2)(C), enacted in 2004, abrogated any prior Tennessee decision that could have been read as requiring parent seeking to modify residential parenting schedule in permanent parenting plan to prove that alleged material change in circumstances could not have reasonably been anticipated when residential parenting schedule was originally established; Supreme Court holds Tennessee Voter Identification Act, which requires that all citizens who appear in person to vote present photographic proof of their identity, constitutional;

Court of Appeals rules that wife, in signing antenuptial agreement, waived her right to share in proceeds from wrongful death action following husbands death; and Court of Appeals reverses trial courts ruling that Tennessee courts lacked personal jurisdiction over defendant, attorney who lived in Washington and practiced with law firm in Virginia, in suit by plaintiff, Tennessee law firm, alleging that defendant failed to pay his one-half of expenses as provided by contract whereby plaintiff associated with defendant as co-counsel in Maryland case.

SUPREME COURT FAMILY LAW: By declaring in TCA 36-6-101(a)(2)(C) that changes relating to childs age or parents living or working conditions may constitute material change in circumstances, General Assembly plainly expressed its intent to permit modification of residential parenting schedules based on changes that reasonably could have been anticipated when original residential parenting schedule was established; TCA 36-6101(a)(2)(C), enacted in 2004, abrogated any prior Tennessee decision that could have been read as requiring parent seeking to modify residential parenting schedule in permanent parenting plan to prove that alleged material change in circumstances could not have reasonably been anticipated when residential parenting schedule was originally established. Armbrister v. Armbrister, 10/21/13, Knoxville, Clark, unanimous, 27 pages.
http://www.tncourts.gov/sites/default/files/armbristerak_opn.pdf

GOVERNMENT: Tennessee Voter Identification Act (Act), which modified requirement for Tennessee voters to supply evidence of identification in order to cast election ballot, is constitutional; photo identification requirement imposed by Act cannot be fairly characterized as additional voting qualification, instead, photo identification requirement is more properly classified as regulation pertaining to existing voting qualification. City of Memphis v. Hargett, 10/17/13, Nashville, Wade, concurrence by Koch, 30 pages.
http://www.tncourts.gov/sites/default/files/cityofmemphisopn_0.pdf http://www.tncourts.gov/sites/default/files/cityofmemphiscon.pdf

COURT OF APPEALS FAMILY LAW: Parties, who were married in 1987, had both been previously married and had children from their prior relationships, in 2001, approximately 14 years after marriage began, parties entered into postnuptial agreement, in which both parties waived their rights to property of other spouse, husband died in 2010,

husbands estate was closed by virtue of agreed order entered in 1/11, in which wife agreed that she was not entitled to any of estate assets due to postnuptial agreement, in 7/11, administrator of husbands estate filed wrongful death suit against NHC Healthcare McMinnville relative to husbands death, wife argued that she was entitled to intestate share of any wrongful death proceeds, upon settlement of wrongful death action, administrator filed declaratory judgment action to determine proper distribution of settlement proceeds among parties, and trial court concluded that wife could not benefit from settlement due to her prior agreements, in signing antenuptial agreement, wife waived her right to share in proceeds from wrongful death action. Rickman v. Rickman, 10/15/13, WS, Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/rickmanv_opn.pdf

FAMILY LAW: At time of parties divorce in 2003, parties signed marital dissolution agreement (MDA) providing that parties would jointly participate in their childrens choice of college, cost of tuition, room and board, fees, and books, and that college expenses would first be paid from childrens college funds (whatever remains after any scholarship(s), grants, or other funds are applied or disbursed), with all uncovered college expenses (tuition, room, board, fees, and books) to be divided equally, father paid one-half of college expenses of two older children, but with regard to parties youngest daughter (Julie), father claimed that he was not consulted about Julies choice of University of Alabama and that university was too expensive, trial court properly determined that language of parties MDA requires father to pay one-half of Julies college expenses; in context of college expenses, the ability to pay is not mere calculation of income and expenses, especially where other substantial assets are available for use, and fathers ability to borrow against significant equity in his home must be considered; trial court properly found that father had ability to pay his one-half of Julies college expenses at University of Alabama. Hill v. Hill, 10/11/13, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/hill_nbowron_opn.pdf

CIVIL PROCEDURE: In case in which defendant, attorney who resided in Washington D.C. and practiced with law firm in Virginia, sought assistance of plaintiff, Memphis law firm, in connection with suit that defendant filed in Maryland, defendant, plaintiff, and client eventually entered into contract whereby plaintiff associated with defendant as co-counsel in Maryland case, and after trial, defendant allegedly refused to pay his one-half share of expenses, as provided by parties contract, trial court erred in dismissing plaintiffs suit against defendant in Tennessee for lack of personal jurisdiction; defendant reached out to Tennessee to create continuing contractual relationship with plaintiff in Tennessee and established requisite minimum contacts with Tennessee for Tennessee to lawfully exercise personal jurisdiction over defendant in suit based on alleged breach of that contract. Wolff Ardis P.C. v. Dailey, 10/11/13, WS, Highers, 13 pages.
http://www.tncourts.gov/sites/default/files/wolffardispcopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant was indicted on charges of DUI, DUI per se, DUI with blood alcohol concentration of .20% or more, and second offense DUI, prior to trial, defendant filed motion in limine to dismiss last count of indictment based on fact that his prior DUI was facially invalid, and trial court granted motion and dismissed last count of indictment, trial court improperly dismissed last count of indictment when defendant sought to collaterally attack his previous conviction rather than seeking review of underlying conviction via writ of habeas corpus; defendant cannot collaterally attack validity of his prior DUI conviction via motion in limine; on remand, fourth count of indictment should be reinstated and matter set for further proceedings. State v. Frier, 10/16/13, Nashville, Smith, 7 pages.
http://www.tncourts.gov/sites/default/files/frierjayopn.pdf

EVIDENCE: In especially aggravated robbery and aggravated assault case, trial judge properly allowed police officer to testify about victims statement at crime scene indicating that he had been beaten by large black man with pipe when statement qualified as excited utterance; victims statement to officer related to startling event or condition short interval of time between attack and victims statement to officer, together with severity of attack, supports conclusion that statement was made while victim was still under stress from event. State v. Jackson, 10/17/13, Nashville, Page, 15 pages.
http://www.tncourts.gov/sites/default/files/jacksonfeltonnevilleopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was serving suspended eight-year sentence on supervised probation, violation of probation warrants were filed, and defendants suspended sentence was revoked after evidentiary hearing, defendant filed motion for trial judge to recuse himself from hearing defendants probation revocation proceeding due to comments made by trial judge during previous court appearances and because trial judge had rejected two proposed negotiated settlement agreements, and trial court ordered sentence to be served in confinement, trial court did not err by denying defendants motion for judge to recuse himself in case prior to evidentiary hearing; although there is no requirement that trial court state its reason(s) for rejecting proposed settlement in probation violation case, trial court chose to do so at some length trial court essentially stated that if allegations that criminal offenses were committed during probation were proven, trial court would order entire sentence to be served without placement back on probation and trial court would have sent same message by simply refusing, without comment, to accept each of proposed settlement agreements which involved return to probation after periods of incarceration. State v. Goforth, 10/17/13, Nashville, Woodall, 10 pages.
http://www.tncourts.gov/sites/default/files/goforthdustinmarshallopn.pdf

REVENUE RULINGS TAXATION: Application of Tennessee sales and use tax to services and licensing rendered to lessees of tangible personal property. Department of Revenue Letter Ruling 13-09, 8/16/13, 7 pages.
http://www.tn.gov/revenue/rulings/sales/13-09.pdf

TAXATION: Applicability of Tennessee sales and use tax industrial machinery exemption to various equipment and supplies. Department of Revenue Letter Ruling 13-10, 8/27/13, 11 pages.
http://www.tn.gov/revenue/rulings/sales/13-10.pdf

If you would like a copy of the full text of any of these opinions, simply click on the link provided or, if no link is provided, you may respond to this e-mail or call us at (615) 661-0248 in order to request a copy. You may also view and download the full text of any state appellate court decision by accessing the states web site by clicking here: http://www.tncourts.gov