TAM-BYTES October 28, 2013 Vol. 16, No.

43
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 **THIS 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 Court of Appeals, in case of first impression, holds that TCA 68-140-703, which requires person or entity acquiring automated external defibrillators (AEDs) to register AEDs with emergency communications district dispatch, does not create private right of action for failure to register AED; Court of Appeals reverses jury verdict in favor of defendant doctor in health care liability case based on reversible error in administration of trial; Court of Criminal Appeals reverses defendants DUI conviction when officers warrantless entry into defendants home was not justified either by consent or by exigent circumstances; and Court of Criminal Appeals says observations made by officers while approaching residence do not constitute information obtained as result of warrantless entry into residence and may be properly considered in issuance of search warrant.

WORKERS COMP PANEL WORKERS COMPENSATION: In case in which employee alleged that he injured his right shoulder and left hip when he fell while entering vehicle, evidence did not preponderate against trial courts finding that hip injury was compensable when there was lay testimony that employees symptoms changed at time of 2010 injury and when there was expert medical testimony from treating physician that 2010 injury was consistent with advancement of underlying arthritic condition. Brim v. Liberty Mutual Insurance Co., 10/23/13, Nashville, Cantrell, 12 pages.
http://www.tncourts.gov/sites/default/files/brimopn_.pdf

CIVIL PROCEDURE: Trial court did not err in ruling that workers compensation claim for hearing loss, which was submitted on 9/11/08, was not barred by statute of limitation when employees hearing loss occurred during his lengthy career at employer, employee acknowledged that he noticed ringing in his ears in 1980s and that he thought loud working environment could be cause, employee admitted that he went to physician in 1985 about his hearing, employers expert wi tness conceded that employers records from 1992 and 1993 revealed that employers medical staff told employee that his hearing was improving, expert witness admitted that, although employees hearing was declining, employer was telling him something different, expert witness acknowledged that company doctor diagnosed employee in 2003 with hearing loss unrelated to his work at employer, and although employees hearing tests indicated decrease in employees hearing, none of these tests connected employees hearing loss to excessive noise inside employers plant nor did these tests indicate that employee might have compensable claim. Upchurch v. Goodyear Tire & Rubber Co., 10/18/13, Jackson, Ash, 9 pages.
http://www.tncourts.gov/sites/default/files/upchurchjopn.pdf

COURT OF APPEALS TORTS: Trial court erred in failing to grant Town of Jaspers (Towns) motion to dismiss, for failure to state claim upon which relief can be granted, suit by widow of decedent who died of complications resulting from myocardial infarction alleging that Town was negligent and negligent per se by failing to register its three automated external defibrillators (AEDs) with emergency communications district dispatch as required by TCA 68-140-703; TCA 68-140-703 does not create private right of action for failure to register AED. Hudson v. Town of Jasper, 10/22/13, MS, Clement, 7 pages.
http://www.tncourts.gov/sites/default/files/hudsont_opn.pdf

EVIDENCE: When plaintiffs filed health care liability action alleging that defendant doctor negligently performed surgery on plaintiffs right arm and caused nerve

damage, and jury returned verdict in favor of defendant, trial court erred in limiting plaintiffs cross-examination of defendant during trial to 30 minutes; while trial judge was often frustrated with slow progression of plaintiffs presentation of proof, trial judges disparaging comments toward and concerning plaintiffs counsel and his presentation of proof in front of jury clearly left jury with unfavorable impression of plaintiffs counsel which likely affected their opinion of plaintiffs case, and while comments alone might not constitute reversible error, when considered with other errors, trial courts comments resulted in plaintiffs being denied fair trial; trial court erred in refusing to allow plaintiffs to present proof that defendant had ceased performing endoscopic carpal tunnel release surgery in 2008, for purpose of impeaching his testimony; jurys verdict is vacated, as there was reversible error in administration of trial. Burchfield v. Renfree, 10/18/13, ES, Frierson, 46 pages.
http://www.tncourts.gov/sites/default/files/burchfield.pdf

COMMERCIAL LAW: When hospital suspended surgeons hospital privileges and restored them less than three months later, as part of settlement in which doctor also waived fair hearing, which was next step in hospitals procedures, surgeon subsequently filed suit against hospital, contending that it had not properly followed its own bylaws in regard to suspension of his privileges and that he was therefore entitled to damages for breach of contract, defamation of character, and tortious interference with business relations, trial court properly granted summary judgment to hospital; by executing explicit waiver of his fair hearing rights, doctor waived his objections to hospitals Medical Executive Committees recommendations, or to procedure that resulted in those recommendations, which would have been subjects of waived hearing; trial court correctly found that hospital was entitled to statutory presumption of immunity from money damages. Roberts v. Saint Thomas Health Services, 10/17/13, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/robertsjrmd_opn.pdf

ESTATES & TRUSTS: In case in which petitioners filed suit seeking to terminate testamentary trust of Buford Taylor and have remaining assets distributed, petitioners asserted that contingent remainder beneficiary Tommy Hamer previously had received advancement of his portion of trust, and trial court granted petitioners summary judgment after finding that affidavit given by Sherrie Hamer, ex-wife of Tommy Hamer, was not properly before court and that Tommy Hamer previously had received advancement of his portion of trust, trial court erred in holding that dead mans statute barred consideration of affidavit of Sherrie Hamer when she was not party to suit and had no interest, her affidavit did not address communications with creator of trust but spoke about communications with Mary Ann Taylor, who is not testator, and her affidavit concerned only manner in which assets would be distributed; trial court erred in ruling that statute of frauds applied to bar consideration of affidavit of Sherrie Hamer when contract for transfer of land, i.e., portion of farm transferred in 1980 to Tommy Hamer and Sherrie Hamer, was between Mary Ann Taylor as trustee of trust and

Tommy Hamer and Sherrie Hamer, and hence, it is third party who is attempting to invoke statute of frauds; grant of summary judgment was inappropriate as there are genuine issues of material fact regarding whether transfer of portion of farm to Tommy Hamer and Sherrie Hamer in 1980 was or was not advancement of Tommy Hamers portion of trust. In re Estate of Taylor, 10/22/13, ES at Nashville, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/inreestateofbufordtayloropn.pdf

FAMILY LAW: In case in which general sessions court granted petitioners request for order of protection against her former boyfriend (Pawlik) based on petitioners allegations that Pawlik had been stalking her, evidence did not preponderate against trial courts finding that Pawlik stalked petitioner such that there was basis for entering order of protection when Pawlik appeared at petitioners house on 8/18/12 with iPad and again on 9/14/12 when he tried to enter her home, he sent petitioner numerous emails, and he sent her flowers with note; fact that petitioner communicated with Pawlik and told him to leave her alone does not negate Pawliks conduct there is distinction between replying to communication and initiating round of communications, and petitioner need not have been utterly silent in face of Pawliks repeated contacts to render his behavior stalking under statute for purposes of seeking order of protection. Walker v. Pawlik, 10/23/13, ES at Nashville, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/walkey__opn.pdf

GOVERNMENT: In case in which City of Knoxville (City) passed ordinance providing for usage of unmanned traffic cameras to enforce traffic violations, including red light and speeding violations, City entered into contract with LaserCraft Inc. which later became American Traffic Solutions (ATS) to install traffic cameras in designated areas in City, parties agreed to share proceeds generated from right-turn-on-red (RTOR) citations, effective 7/1/11, legislature amended TCA 55-8198 to prohibit use of traffic camera evidence when there is no posted No Turn on Red sign, attorney general thereafter issued opinion that statutory amendment applied to all existing contracts, including Citys contract with ATS, City notified ATS that it would no longer prosecute RTOR violations identified by traffic cameras (thus reducing ATSs annual compensation pursuant to contract with City by 30 to 50%), and ATS filed declaratory judgment action against City, contending that statutory amendment was constitutionally invalid, amendment, as applied to contract between ATS and City, does not violate Tennessee Constitution; substantive law defining RTOR violation was not revised by amendment amendment merely alters rules of evidence to determine when person has violated traffic law amendment is bona fide exercise of police power that specifically addresses public health, safety, and welfare, amendment relates to legitimate public interest, and amendment did not impair contract between ATS and City. American Traffic Solutions Inc. v. City of Knoxville, 10/18/13, ES, McClarty, 13 pages.
http://www.tncourts.gov/sites/default/files/americantrafficopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant pled guilty to first offense DUI, trial judge erred in denying defendants motion to suppress when officers warrantless entry into defendants home was not justified either by consent or by exigent circumstances; while there was series of suspicious circumstances occurring at or near defendants residence on evening in question, factors common in these other exigent circumstances cases were not present, i.e., there were no signs or sounds of distress coming from inside home nor evidence leading directly to structure; trial court erred in holding that exigent circumstances justified officers entry based upon his belief that someone inside of home may have been seriously injured or possible burglary might have occurred when there was no evidence leading directly into home, such as trail of blood, and there were no noises, voices, or screams leading officers to believe that someone inside may be in immediate distress or in need of protection; because Tennessee Supreme Court declined to recognize community caretaking doctrine as exception to Fourth Amendments warrant and probable cause requirements, and limited doctrine to consensual police-citizen encounters, officer was not validly acting in community caretaking role when he entered defendants residence; trial courts judgment is reversed, and charge against defendant is dismissed. State v. Gibson, 10/18/13, Nashville, Thomas, 17 pages.
http://www.tncourts.gov/sites/default/files/gibsonjustinopn_1.pdf

CRIMINAL PROCEDURE: Observations made by officers while approaching residence do not constitute information obtained as result of warrantless entry into residence and may be properly considered in issuance of search warrant sidewalk or pathway leading from public street to front door of residence represents implied invitation to public to use pathway in pursuing legitimate business or social interests with those inside residence, and police officers, who are conducting official police business, are considered members of general public. State v. Roberson, 10/24/13, Knoxville, Wedemeyer, 35 pages.
http://www.tncourts.gov/sites/default/files/roberson.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted on two counts of felony murder, along with several other burglary and larceny offenses, and sentenced to death for one of two murders, Tennessee Supreme Court granted defendant delayed appeal due to ineffective assistance of trial counsel during motion for new trial and direct appeal, and successor judge (Blackwood) was appointed to preside over case following remand due to death of trial judge, Blackwood did not err in concluding that he was able to fulfill his duties as thirteenth juror; if successor judge rejected newly discovered evidence, even though he agreed to review it before analyzing its significance, then any impact it may have had on credibility of trial witnesses cannot be considered to have affected his ability to serve as thirteenth juror;

Blackwood did not abuse discretion in rejecting defendants alleged newly discovered evidence which is based solely on defendants claim that he did not reveal evidence supporting his alibi because he did not pay attention during trial in which his life was literally on line. State v. Hall, 10/22/13, Nashville, Thomas, 31 pages.
http://www.tncourts.gov/sites/default/files/hallwilliameugenedp_opn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of selling .5 gram or more of cocaine within 1,000 feet of elementary school, trial judge did not err in refusing to join offense with another offense, i.e., possession with intent to sell 300 grams or more of cocaine, for which defendant had been previously tried and convicted two offenses which occurred almost one month apart and at different locations were not part of same criminal episode even though same confidential information was used in both cases; indictment against defendant was not rendered defective because it failed to cite to drug-free school zone statute or name school at issue. State v. Grimes, 10/22/13, Nashville, Thomas, 12 pages.
http://www.tncourts.gov/sites/default/files/grimesjamieopn.pdf

TRIAL COURTS CRIMINAL PROCEDURE: In suit by plaintiffs to recover attorney fees and damages for alleged official misconduct of defendants, Knox County Sheriff deputies, Tennessee Department of Safety, and its attorney, in which plaintiffs alleged wrongful acts were committed in connection with traffic stop on 9/9/10 and ensuing forfeiture proceedings of plaintiffs van, plaintiffs failed to prove under TCA 29-37-104(b)(1) that actions of defendants were arbitrary and capricious and/or were brought in bad faith for purpose of harassment; plaintiffs failed to prove under TCA 40-33-215 that defendants acted in bad faith, and plaintiffs failed to demonstrate that defendants acted intentionally, dishonestly, willfully and/or without reasonable basis in law or fact in regard to seizure or failure to return property seized; plaintiffs failed to prove under TRCP 11 and 37 that defendants violated standard that when an attorney signs a motion, document or other paper to the court, he certifies to the court that he has read it, that he has reasonably inquired into the facts and law it asserts, that he believes it is well-grounded in both fact and law, and that he is acting without improper motive. Harmon v. Harris, 7/15/13, Davidson Chancery, Lyle, 33 pages.

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