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TAM-BYTES November 25, 2013 Vol. 16, No.

47
2013 TAM CLE CALENDAR

Audio Conferences
Rules and Free Resources Lawyers Should (But Might Not) Know About, 60-minute 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, 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 Event
TENNESSEE TORT LAW CONFERENCE WHEN: NEXT 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, Candi Henry, Bryan Moseley, and Jonathan Patton. 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 holds that because jail had no prior notice that attack on plaintiff was reasonably foreseeable probability, county was not liable for injuries plaintiff suffered as result of countys negligence in failing to release him from jail in timely manner;

In case in which trial court granted remittitur reducing compensatory damages award to $90,321 from $317,000 to $54,192 from $190,000 with jurys allocation of fault Court of Appeals holds reduction was so substantial as to totally destroy jurys verdict and remands case for new trial; Court of Appeals interprets Business Income and Extra Expense endorsement obligating insurer to pay for lost business income during period of restoration of building following fire; Court of Criminal Appeals holds TCA 8-7-106(b), which allows district attorney to specially appoint attorney general to conduct specific criminal proceedings, does not violate Tennessee Constitution; Court of Criminal Appeals reverses trial courts holding that TCA 55-9-107(c) (window tint statute) was unconstitutionally vague and overbroad; and Court of Criminal Appeals awards new trial on all charges for which defendant was convicted based on new DNA evidence.

SUPREME COURT TORTS: In case in which plaintiff was arrested for driving on revoked license and placed in cell with several violent criminals, after trial court ordered plaintiff released at his arraignment, pretrial release officer delayed plaintiffs release by simply doing nothing, plaintiff was subsequently assaulted by one of his cellmates, sustaining serious injuries, and plaintiff filed suit against county for injuries he sustained as result of countys negligence in failing to release him in timely manner, county was not liable to plaintiff because injuries plaintiff suffered as result of delay were not reasonably foreseeable; because there was no evidence that county officials knew or should have known that plaintiff would become victim of attack by his cellmates after he was returned to his cell to await pretrial release, evidence preponderated against trial courts finding of foreseeability and establishment of proximate cause. King v. Anderson County, 11/21/13, Knoxville, Clark, dissent by Wade, 27 pages.
http://www.tncourts.gov/sites/default/files/kingke_opn.pdf

COURT OF APPEALS DAMAGES: In motor vehicle case in which jury awarded plaintiff compensatory damages of $317,000, award was reduced by 40% based on respective fault allocation, judgment was entered for $190,000, trial court granted remittitur revising damages to $90,321, and trial court, commensurate with jurys allocation of fault, approved judgment for $54,192, evidence did not preponderate against trial courts determination that verdict was excessive when jury awarded plaintiff

$120,476 for future pain and suffering and additional $156,205 for future loss of enjoyment of life, plaintiffs medical expenses only amounted to $14,731, plaintiff continued to experience pain and weakness from his injuries but he was able to work and perform most household tasks, and his greatest limitation appeared to be that he could no longer fully enjoy his hobby of riding motorcycles; reduction in damages was so substantial as to totally destroy jurys verdict; trial courts suggested remittitur is vacated, and case is remanded for new trial solely addressing proper amount of damages to which trial court is directed to apply 60% fault allocation attributed to defendant by jury. Adams v. Leamon, 11/25/13, ES, Frierson, 8 pages.
http://www.tncourts.gov/sites/default/files/leamonopn.pdf

DAMAGES: In case in which plaintiff filed suit for personal injuries sustained in three-vehicle accident, plaintiff was diagnosed with cervical strain and complained of continued neck and back pain, and defendant admitted liability, material evidence supported jurys award of $15,000 in compensatory damages when both expert medical witnesses agreed that MRIs plaintiff underwent, at cost of $3,790, were not medically necessary, and one doctor opined that type of injury plaintiff had would not have been symptomatic any longer than 10 to 14 weeks after accident; trial court did not err in refusing to instruct jury regarding aggravation of pre-existing condition when doctor opined that person with degenerative changes like those of plaintiff was more susceptible to injury and pain and that it was common for motor vehicle accident to cause some neck pain to manifest itself in person with degenerative changes, and doctor did not testify that accident aggravated or exacerbated plaintiffs condition or had any specific effect on it; doctors generalized observations about susceptibility and common correlations between neck pain and [a]nything that causes an excessive range of motion to an abnormal joint was not material evidence sufficient to support requested instruction. Pyle v. Mullins, 11/25/13, ES, Susano, 19 pages.
http://www.tncourts.gov/sites/default/files/pylejopn.pdf

INSURANCE: In case in which insurer sought to limit its obligation to pay for lost business income during period of restoration of building following fire, Business Income and Extra Expense endorsement obligating insurer to pay for the actual loss of Business Income you sustain due to the necessary suspension of your operations during the period of restoration and necessary Extra Expense you incur during the period of restoration that occurs within 12 consecutive months after the date of the direct physical loss of or damage to property was susceptible to more than one reasonable interpretation it was reasonable to interpret provision as obligating insurer to pay for the actual loss of Business Income you sustain due to the necessary suspension of your operations during the period of restoration and for necessary Extra Expense you incur during the period of restoration that occurs within 12 consecutive months after the date of

the direct physical loss of or damage to property; insureds recovery of lost business income was not limited to six months from date of appraisal award when appraisal panel made binding determination that reasonable time frame within which repairs to building should have been completed was six months after date construction began. Artist Building Partners v. Auto-Owners Mutual Insurance Co., 11/21/13, WS at Nashville, Highers, 22 pages.
http://www.tncourts.gov/sites/default/files/artistbuildingpartnersopn_0.pdf

COMMERCIAL LAW: When lessee sought lessors consent to assignment of lease to third party, lessor withheld consent to assignment, lessor terminated lease based on conditions at hotel that he deemed to violate lease, and lessee filed suit alleging that lessor wrongfully terminated lease and unreasonably withheld consent to assignment, trial court did not err in concluding that hotel was not subjected to waste at time of termination letter when lessor failed to show by preponderance of evidence that hotel was subjected to unreasonable or improper use, abuse, or mismanagement; trial court properly held that lessor unreasonably withheld consent to transfer to third party when third partys shareholders were financially stable and willing to personally guarantee its financial obligations, third party assured lessor it would continue to upgrade hotel consistent with 5% cap on maintenance, repairs, and replacement expenditures in lease, and lessors insistence that third party do more than was required by lease constituted attempt to extract economic concessions. 1963 Jackson Inc. v. De Vos, 11/21/13, WS, Farmer, 22 pages.
http://www.tncourts.gov/sites/default/files/devoslloydopn.pdf

FAMILY LAW: In case in which mother sought modification of parenting schedule after moving from Tennessee to Florida to be nearer to father and parties child at time mother filed petition, both she and child lived in Tennessee and trial court modified schedule to allow mother more time with child, trial court did not abuse discretion in denying fathers motion to dismiss mothers petition for modification on basis of forum non conveniens when child had lived in Tennessee at least prior to divorce trial in 10/11 to 5/12 when he moved to live with father in Florida, child had lived in Florida for approximately 13 weeks at time of trial, and Tennessee trial court was very familiar with parties and child, having presided over parties divorce less than one year prior to modification hearing; trial courts statement encouraging mother to move to Florida is not proper basis to conclude that mothers move was reasonably anticipated at time final decree and permanent parenting plan were entered in situations where one parent is moving, law in Tennessee states that move, in and of itself, does not constitute material change in circumstances; trial court did not err in finding that mothers move, and her resulting ability to have more visitation with child without major expense, constituted material change in circumstances affecting best interest of child; because trial court failed to articulate any factors it considered in making decision to modify parenting schedule or to make explicit finding that modification was in

childs best interest, trial courts order is vacated and case is remanded for appropriate findings. Iman v. Iman, 11/19/13, WS at Nashville, Stafford, 19 pages.
http://www.tncourts.gov/sites/default/files/imanwrevised.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision denying fathers request to change childs surname when it was in childs best interest to keep mothers surname based on fact that that there was degree of community respect associated with the childs present name due to childs maternal grandfathers involvement for many years in number of civic endeavors as well as his association with Brentwood Police Department. In re Jacob H.C., 11/20/13, MS, Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/inre.jacob_h._c._opn.pdf

FAMILY LAW: Trial courts order of confirmation, confirming findings and recommendations of magistrate with respect to child support, was interlocutory rather than final, and as such, trial court did not err in addressing defendants petition to modify child support along with defendants motion to modify his spousal support during later hearing. Harness v. Harness, 11/21/13, ES, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/harnesstjopn.pdf

COURT OF CRIMINAL APPEALS CONSTITUTIONAL LAW: TCA 8-7-106(b), which allows district attorney to specially appoint attorney general to conduct specific criminal proceedings, does not violate Tennessee Constitution; trial court did not abuse discretion in excluding evidence of civil settlement between defendant and Knox County in defendants criminal forgery case when evidence was not relevant because settlement involved other extraneous claims beyond issues raised in criminal trial; trial judge properly instructed jury on definition of value when apparent value of forged writing was essential element state had to prove with respect to count charging defendant with Class D felony; trial judge did not abuse discretion in denying defendant judicial diversion based on fact that defendant, who served as Senior Director of Community Services, abused position of public trust. State v. Finch, 11/22/13, Knoxville, Thomas, partial dissent by Tipton, 30 pages.
http://www.tncourts.gov/sites/default/files/finchcynthiaopn.pdf

CRIMINAL PROCEDURE: Trial court did not abuse discretion in denying defendants recusal motion when fact that trial court found evidence presented established at least probable cause, if not almost a sure thing, did not demonstrate actual bias or appearance of partiality on part of trial judge. State v. Gregory, 11/25/13, Nashville, McMullen, 26 pages.
http://www.tncourts.gov/sites/default/files/gregoryclayopn.pdf

CRIMINAL PROCEDURE: Trial judge erred in granting defendants motion to suppress on ground that TCA 55-9-107(c) (window tint statute) was unconstitutionally vague and overbroad; trial court erred by ruling that statute is unconstitutionally vague when it incorporates reasonableness standard, which serves as objective standard for law enforcement officers charged with enforcing statute; trial court erred by ruling that statute is unconstitutionally overbroad when authority of officers to conduct brief, investigatory stop is narrowly drawn and does not create stop-at-will standard because officers must justify any stop with specific and articulable facts supporting reasonable suspicion of wrongdoing; trial courts ruling is reversed, indictment against defendant is reinstated, and case is remanded to trial court for further proceedings. State v. Davidson, 11/26/13, Nashville, Page, concurrence by Witt, 9 pages.
http://www.tncourts.gov/sites/default/files/kizerdeedralynetteopn.pdf http://www.tncourts.gov/sites/default/files/davidsonkizercon_0.pdf

APPEAL & ERROR: Trial courts judgment granting new trial on count 2, conviction for rape of child penile penetration is affirmed, but judgment denying new trial on counts 1 (rape of child digital penetration), 4 (aggravated sexual battery defendants hand on victims vagina), 5 (aggravated sexual battery defendants hand on victims breast), and 6 (casual exchange of controlled substance to minor) is reversed; DNA evidence casts at least some doubt on accuracy of results of expert who testified at trial and calls into question not only whether petitioner committed offense of rape of child penile penetration but also whether petitioner committed any of charged offenses; new DNA evidence undermined victims credibility not just as to child rape penile penetration charge, but also as to all charges for which petitioner was convicted, and reasonable basis exists for concluding that had new DNA evidence expert at post-conviction hearing stated that Serological Research Institute (SERI) was able to identify more genetic material on underwear than trial expert and that SERIs results showed that petitioner was excluded from male DNA on sample from waistband of victims underwear and was excluded from male DNA on sample from crotch of victims underwear been presented at trial, result of proceedings on all of charges might have been different. Mills v. State, 11/19/13, Nashville, McMullen, 33 pages.
http://www.tncourts.gov/sites/default/files/millsrandallopn_0.pdf

REVENUE RULING TAXATION: Application of Tennessee sales and use tax to various transactions involving online gaming and other digital content. Department of Revenue Letter Ruling 13-15, 10/14/13, 10 pages.
http://www.tn.gov/revenue/rulings/sales/13-15.pdf

ATTORNEY GENERAL OPINION CONSTITUTIONAL LAW: 1949 Private Act 771, as amended by 1972 Private Act 374, which imposes restrictions limiting Tennessee Democratic Partys discretion in how to organize itself, conduct its own affairs, and select its leaders in DeKalb County, unconstitutionally burdens associational rights of Tennessee Democratic Party and its members in DeKalb County and is, therefore, unenforceable. Attorney General Opinion 13-90, 11/19/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-090.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