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TAM-BYTES November 11, 2013 Vol. 16, No.

45
2013 TAM CLE CALENDAR

Audio Conferences
Rules and Free Resources Lawyers Should (But Might Not) Know About, 60minute webinar presented by Candi Henry, with Dodson, Parker, Behm & Capparella, PC, on Tuesday, December 10 at 2 p.m. (Central), 3 p.m. (Eastern). Workplace Violence: A Look at Legal and Practical Implications in Tennessee, 60-minute webinar presented by David L. Johnson (Nashville) and Todd P. Photopulos (Memphis),with Butler, Snow, OMara, Stevens & Cannada, PLLC, on Thursday, December 12, 3 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
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 TRCP 15.03 may not apply to correct misnomer in pre-suit notice under health care liability statutes; Court of Appeals says tribunals have discretion to deviate from Child Support Guidelines for reasons other than those explicitly set forth in Guidelines; and Court of Appeals rules that trial court erred in holding that because Board of Professional Responsibility, district committee members, and disciplinary counsel are separate entities, emails between them do not constitute work product or work files.

COURT OF APPEALS TORTS: When plaintiffs pre-suit notice contained misnomer naming defendants fundraising entity (Mental Health Cooperative Foundation, Inc.) rather than appellee (Mental Health Cooperative, Inc.) as proper defendant, trial courts dismissal of suit is affirmed; giving pre-suit notice to party that is not going to be named as defendant is of no effect under TCA 29-26-121(a)(2); it cannot be concluded, as matter of law, that pre-suit notice is pleading as it is requirement that precipitates filing of complaint, and hence, on its face, TRCP 15.03 may not apply to correct misnomer in pre-suit notice under health care liability statutes; in absence of extraordinary cause, proper disposition is dismissal for failure to comply with pre-suit notice requirement of TCA 29-26-121. Shockley v. Mental Health Cooperative Inc., 11/4/13, WS at Nashville, Stafford, 17 pages.
http://www.tncourts.gov/sites/default/files/shockleyt_opn.pdf

FAMILY LAW: In case in which parties were divorced in 2006 but parenting plan did not include award of child support because residential parenting time was equally shared and parties were earning roughly same amount, mother filed petition in 2010 seeking award of child support based on fathers increased income, and trial court deviated downward from presumptive amount of child support established by Child Support Guidelines (Guidelines) to take into account each partys expenses incurred in driving back and forth to work, and then awarded mother child support payable on monthly basis, trial court did not exceed its authority by deviating downward for reason not explicitly set forth in Guidelines; tribunals have discretion to deviate from Guidelines for reasons other than those explicitly set forth in Guidelines. Jesse v. Jesse, 11/7/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/jessebd.opn_.pdf

GOVERNMENT: In case in which attorney filed petition pursuant to Public Records Act (Act) for disclosure of documents held by Tennessee Board of Professional Responsibility (Board), Boards chair, and disciplinary counsel to Board relating to eight disciplinary proceedings access to documents had been withheld based on claim that documents were exempt from disclosure in accordance with Supreme Court Rule 9 and trial court granted attorneys petition, because documents sought were confidential and privileged from disclosure, trial courts judgment is reversed; trial court erred in holding that because Board, district committee members, and disciplinary counsel are separate entities, emails between them do not constitute work product or work files; case is remanded to trial court with instructions to dismiss attorneys petition. Reguli v. Vick, 11/7/13, MS, Dinkins, Bennett not participating, 9 pages.
http://www.tncourts.gov/sites/default/files/regulic.v._vickj.opn_.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Although trial court erred in failing to properly instruct jury on aggravated kidnapping as required under State v. White, 362 SW3d 559 (Tenn. 2012), error was harmless when no rational trier of fact could conclude that defendants actions in struggling with and restraining victim in living room were essentially incidental to crime of aggravated burglary aggravated burglary was completed when defendant entered into victims home without her consent and with intent to commit felony or assault therein. State v. Smith, 11/4/13, Jackson, McMullen, 20 pages.
http://www.tncourts.gov/sites/default/files/smithsylvesteropn.pdf

CRIMINAL LAW: Trial court erroneously classified defendants assault conviction as Class A misdemeanor when it was properly classified as Class B misdemeanor, and hence, trial courts judgment is modified accordingly, with modified sentence of six months imposed on that count; because jury was only instructed regarding assault committed under TCA 39-13-101(a)(3), which constitutes Class B misdemeanor pursuant to TCA 39-13-101(b)(1), by its verdict, jury necessarily convicted defendant only of this lesser grade offense. State v. Hines, 11/5/13, Knoxville, Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/correctedhinesopn.pdf

CRIMINAL PROCEDURE: Post-conviction court properly granted petitioner delayed appeal in aggravated sexual battery case for review of issues raised but not address in his direct appeal; post-conviction court erred in summarily dismissing postconviction petition with respect to petitioners claims of ineffective assistance of successor counsel; allegations regarding ineffectiveness of appellate counsel, when trial and appellate counsel are different, are not waived under Post-Conviction Procedure Act when those allegations are not presented on direct appeal, and defendant retains surviving claim of ineffective assistance relative to performance of successor counsel in relation to his or her representation on motion for new trial. State v. Simmons, 11/6/13, Nashville, McMullen, 18 pages.
http://www.tncourts.gov/sites/default/files/simmonsjeffreyopn.pdf

ATTORNEY GENERAL OPINION CRIMINAL PROCEDURE: TCA 40-32-101(g), which became effective 7/1/12 and allows certain non-violent offenders to petition for expunction of their criminal records if they are otherwise eligible, is not unconstitutionally vague. Attorney General Opinion 13-86, 11/6/13, 4 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-086.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