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TAM-BYTES February 17, 2014 Vol. 17, No.


Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients For more information or to register go to:

******************************************************************* 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE. FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information or to register go to:

Audio Conferences
HIPAA: New Regulations, Its Implications, and Its Impact, 60-minute webinar presented by Elizabeth Warren, Nashville attorney with Bass, Berry & Sims, on Thursday, February 27, at 10 a.m. (Central), 11 a.m. (Eastern). Understanding the Basics of Tennessees DUI Laws: Information and Guidance for Tennessee Attorneys, 90-minute webinar presented by Rob McKinney, Nashville attorney with the Law Office of Rob McKinney, on Thursday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). Intentional Interference with Business Relationships in Tennessee: An Overview, Update, and Litigation Tips, 60-minute webinar presented by Thomas W. Shumate IV, Nashville attorney with Kay, Griffin, Enkema & Colbert, P.L.L.C., on Thursday, March 6 at 2 p.m. (Central), 3 p.m. (Eastern). Ethics of Social Media: Dos and Donts for Attorneys, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney with Balch & Bingham, on Thursday, March 25 at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of DUAL credit.
For more information or to register, call (800) 727-5257 or visit us at

IN THIS WEEKS TAM-Bytes Court of Appeals affirms grant of summary judgment to defendant bar in dram shop action when individual, who had consumed alcohol in bar but had not been sold alcohol by bar, crashed her vehicle into decedents home, killing decedent; Court of Appeals holds that in absence of express provision to contrary, Governmental Tort Liability Act applies to claims brought against municipality pursuant to Tennessee Public Protection Act, thereby requiring claim to be tried without intervention of jury; In suit arising out of 2010 Nashville flood, Court of Appeals affirms trial courts award of compensatory and punitive damages against lessor when lessee relied on lessors promise to reimburse it for costs of repairs from insurance proceeds should lessee use its own resources to undertake repairs; Court of Appeals says that judicial remarks during course of trial that are critical or disapproving of, or even hostile to, counsel, parties, or their cases, ordinarily do not support bias or partiality challenge; Court of Criminal Appeals says trial judges signature on warrant, after witnessing officer write in his name as executing officer, constituted effective endorsement under TRCrP 41; Sixth Circuit rules that plaintiffs adequately pled claim for medical battery, which was not subject to requirements of Tennessee Medical Malpractice Act, when they alleged decedent died from allergic reaction to heparin injections that had been administered despite her objections; and Sixth Circuit finds officers repeated use of taser on plaintiff who was not armed or threatening and not actively resisting arrest was unreasonable and constituted use of excessive force. SUPREME COURT PROFESSION OF LAW: Supreme Court Rule 9 is amended to provide that attorneys residence address is confidential and not public record, except when attorney failed to provide office address or attorney listed residence address as attorneys office address. In re Supreme Court Rule 9, Section 10.1, 2/14/14, Nashville, 2 pages.

COURT OF APPEALS TORTS: When 71-year-old decedent was killed when vehicle driven by Langworthy crashed into decedents home, Langworthy was intoxicated at time of crash and had

consumed alcohol earlier that evening at Electric Cowboy (defendant), plaintiff, administratrix of decedents estate, filed suit against Langworthy and Electric Cowboy, and plaintiff settled claim against Langworthy, trial court properly granted Electric Cowboy summary judgment when no sale of alcoholic beverages by Electric Cowboy to Langworthy occurred on relevant night; fact that Langworthy consumed alcoholic beverages while at Electric Cowboy is insufficient by itself to show that sale of alcoholic beverages by Electric Cowboy to Langworthy occurred on night of accident. Widner v. Chattanooga Entertainment Inc., 2/11/14, ES, Swiney, 15 pages.

EMPLOYMENT: In retaliatory discharge action brought by former city administrator, trial court erred in denying citys motion to strike city administrators jury demand; in absence of express provision to contrary, Governmental Tort Liability Act applies to claims brought against municipality pursuant to Tennessee Public Protection Act, thereby requiring claim to be tried without intervention of jury. Young v. City of LaFollette, 2/10/14, ES, Frierson, 11 pages.

INSURANCE: When chiropractic clinic provided services to party injured in automobile accident, injured party assigned proceeds of his claim against tort-feasor to clinic in payment of services, tort-feasors liability insurer did not honor assignment, and clinic filed suit against injured party and insurer, trial court properly granted insurer summary judgment; injured party was not relative of either of named insureds and automobile he was driving was not insured by insurer, tort-feasor did not execute any document or take any action to assign his benefits to injured party, and hence, injured party was not a person entitled to benefits under the policy as that term is used in statute; injured party had no rights against insurer he could assign to clinic, and insurer was not obligated to honor assignment as demanded by clinic; insurers only obligation was to indemnify its insured, tort-feasor, and insurer had no obligation either to injured party or clinic independent of responsibility to tort-feasor; injured party was not insured or entitled to benefits under policy, and he did not have any right to have insurer perform any duty arising from insurance policy, including duty to honor assignment. Action Chiropractic Clinic LLC v. Hyler, 2/12/14, MS, Dinkins, 11 pages.

COMMERCIAL LAW: When plaintiff, operator of dog camp facility it leased from defendant corporation, alleged that property was substantially damaged and made untenantable by flooding in Nashville on 5/1/10 and 5/2/10, that defendants owner visited property and told plaintiff that property was covered by flood insurance, defendant agreed to submit claim for insurance benefits, plaintiff engaged third parties to remove water and make repairs, defendant recovered more than $40,000 from its insurance carrier but did not reimburse plaintiff, and trial court

awarded plaintiff $35,191 in compensatory damages and $10,000 in punitive damages, parties course of conduct indicated that they intended other cause in provision of lease requiring lessor to make repairs for damage by fire or other cause to include flood damage; evidence supported trial courts finding of promissory fraud when plaintiff relied on defendants promise to reimburse it for costs of repairs from insurance proceeds should plaintiff use its own resources to undertake repairs; evidence supported trial courts finding that defendants fraudulent actions were intentional and knowing; trial court did not err by piercing corporate veil so as to make owner and corporation jointly and severally liable when defendant did not maintain arms-length relationship with corporation, and it was, in fact, his alter ego. Dog House Investments LLC v. Teal Properties Inc., 2/7/14, WS at Nashville, Farmer, 12 pages.

COMMERCIAL LAW: Plaintiffs, shareholders of OCharleys Inc., filed class action to enjoin imminent merger with and acquisition by Fidelity National Financial based on claim of breach of fiduciary duty, after merger was completed, defendants filed motions to dismiss pursuant to TRCP 12.02(6) for failure to state claim upon which relief could be granted, and plaintiffs, who did not oppose motions to dismiss, filed motion to recover attorney fees, arguing that they were entitled to attorney fees under common law substantial benefit doctrine, trial court properly denied plaintiffs request for attorney fees; common law substantial benefit doctrine has enjoyed very limited application in Tennessee and only in context of TCA 48-17-401(d)(1), which governs shareholder derivative litigation, and although plaintiffs case invol ves shareholder litigation, it is not derivative action, rather it is class action; given fact that substantial benefit doctrine is not entrenched in Tennessee common law, American Rule should be applied strictly, resulting in no award of attorney fees to plaintiffs. Kaniecki v. OCharleys Inc., 2/11/14, MS, Clement, 8 pages.

FAMILY LAW: In case in which, after many years without parenting time, mother filed petition seeking to be designated primary residential parent of parties daughter, evidence did not preponderate against trial courts determination that despite incidents of domestic violence in fathers home, it was in daughters best interest for father to remain as primary residential parent; trial courts decision was driven primarily by two factors tendency of each parent to facilitate childs relationship with other parent and continuity for daughter and given fact that there was no proof that child was affected by incidents of domestic violence in fathers home or was even aware of them, child is thriving in fathers home, and because mother now resides in Michigan, change in designation of primary residential parent would uproot child from her entire life. In re T.R.Y., 2/12/14, WS at Nashville, Kirby, 20 pages.

FAMILY LAW: Trial court erred in ordering wife to receive total sum of $115,000, net and unreduced by taxes, from husbands 401(k) account when, pursuant to unambiguous terms of parties Qualified Domestic Relations Order (QDRO), which was incorporated into parties marital dissolution agreement, wife is required to pay the appropriate federal, state, and local income taxes on distributions from husbands 401(k) account; although MDA did not expressly state that wife would be responsible for paying taxes on any distribution from husbands 401(k) account, converse that wife would not be responsible for payment of taxes likewise, was not expressed; there is no authority supporting wifes apparent assertion that award made as division of marital property is necessarily not subject to reduction through taxation. Macy v. Macy, 2/11/14, WS at Nashville, Highers, 11 pages.

EVIDENCE: In medical malpractice case in which trial court prohibited use of taped testimony from prior trial when doctor exercised his statutory right not to appear at trial, efforts of defendants counsel to secure doctors live testimony were successful, plaintiffs counsel argued that counsel was being ambushed, and trial court determined not to allow doctor to testify, trial court applied incorrect legal standard in preventing defendants from utilizing doctors testimony from prior trial when doctor exercised his statutory exemption from appearance at trial; ability to depose expert does not render him or her available such that his or her prior testimony cannot be used; trial court employed reasoning that caused injustice to defendants when trial court did not allow doctor to testify at trial; defendants were prejudiced when they were denied use of expert witness who had taught doctor and nurse involved in plaintiffs care, expert could testify about how such situations in course of delivery should be handled, and he could testify as to what he had taught doctor and nurse; trial courts decision is reversed on these two issues, and case is remanded for new trial. Cullum v. Baptist Hospital System Inc., 2/12/14, MS, Bennett, 7 pages.

CIVIL PROCEDURE: In divorce case in which wife, attorney, represented herself, trial judge properly denied wifes motion to recuse; generally, in order to justify recusal, any alleged bias must arise from extrajudicial sources and not from events or observations during litigation of case, and if bias is alleged to stem from events occurring during course of litigation of case, party seeking recusal has greater burden to show bias that would require recusal, i.e., that bias is so pervasive that it is sufficient to deny litigant fair trial; opinions of judge based upon events that occur during litigation of case are not extrajudicial and do not arise from outside or from personal bias, and hence, judicial remarks during course of trial that are critical or disapproving of, or even hostile to, counsel, parties, or their cases, ordinarily do not support bias or partiality challenge. McKenzie v. McKenzie, 2/11/14, MS, Cottrell, 10 pages.

CIVIL PROCEDURE: Trial court did not err in dismissing action after defendant filed confession of judgment for full amount of damages requested in general sessions warrant in light of plaintiffs failure to amend complaint after transferring case to circuit court to increase amount of damages sought. McKissack v. Davidson Transit Organization, 2/11/14, MS, Bennett, 4 pages.

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Trial judge erred in granting defendants motion to dismiss indictments against him defendant had been indicted on three counts of contracting without license in violation of TCA 62-6-103 and 62-6-120 when trial court improperly determined that defendant was not contractor because he was supervising more than $25,000 of improvements to three pieces of commercial property, i.e., property that was for public rather than private use; plain language of Contractor Licensing Act provides that activities undertaken by defendant must be done by licensed contractor, and hence, defendant falls within definition of contractor and outside exemptions of licensing requirement. State v. Howell, 2/13/14, Jackson, Smith, 8 pages.

CRIMINAL PROCEDURE: Trial judge did not err in denying defendants motion to suppress evidence seized from his home based on defective search warrant when executing officer appeared in front of judge and wrote his name on warrant in presence of judge, who then signed and dated it; while there are very few cases addressing TRCrP 41 TRCrP 41(c) requires that motion to suppress be granted if proof shows that magistrate did not endorse on the warrant the date and time of issuance and the name of the officer to whom the warrant was issued trial judges signature on warrant, after witnessing officer write in his name as executing officer, constituted effective endorsement. State v. Armstrong, 2/12/14, Jackson, Glenn, 4 pages.

SIXTH CIRCUIT COURT OF APPEALS TORTS: In case in which decedents heirs filed suit against decedents doctors, hospital, and clinic alleging that decedent died from allergic reaction to heparin injections that had been administered despite her objections, district court, construing complaint to sound only in medical malpractice, dismissed case for failure to comply with notice and heightened pleading requirements of Tennessee Medical Malpractice Act (TMMA), plaintiffs plausibly alleged medical battery, which is not subject to

TMMA and district courts dismissal of that portion of complaint is reversed; injection fits within definition of procedure and is species of touching or physical contact battery and so provides sufficient factual basis for that element of medical battery claim; plaintiffs adequately pled their medical battery claim as complaint makes out case for nonconsensual contact (injection) that violated decedents right to bodily integrity and that proximately caused her death. Shuler v. Garrett, 2/14/14, Stranch, 9 pages, Pub.

COMMERCIAL LAW: In deceptive-mortgage-refinancing case, district court erred in applying three-year statute of limitation applicable to injuries to personal or real property to plaintiffs fraudulent inducement claim; although plaintiff seeks damages for statutory and regulatory violations and also injunctive relief to protect him from foreclosure gravamen of his fraudulent inducement claim is financial loss of accepting unfair loan, one he seeks to set aside; because pleadings yield no definitive answer regarding timeliness of claim under longer limitations periods, district courts FRCP 12(b)(6) dismissal of claim is reversed as premature. Humphreys v. Bank of America, 2/11/14, Cook, 16 pages, N/Pub.

CONSTITUTIONAL LAW: In case in which plaintiff filed suit against police officer under 42 USC 1983 for alleged use of excessive force when officer arrested plaintiff at fast-food restaurant, district court properly denied officers motion for summary judgment on basis of qualified immunity; under circumstances of case officer (along with second officer) was dispatched to restaurant after two 911 callers reported apparently intoxicated man at restaurant falling everywhere, removing his shirt, and using foul language, man (plaintiff) had climbed onto counter at restaurant and, when police arrived, was non-responsive and sitting in fetal position with his shirt over his head, and officer swiftly arrested plaintiff, and in process tased plaintiff three times within 16 seconds plaintiff, who was not armed or threatening, was not committing crime, was non-compliant but not actively resisting arrest, and was not fleeing from officers, had clearly established constitutional right to be free from repeated use of taser, and hence, officers use of taser was unreasonable, and thus excessive. Brown v. Weber, 2/13/14, Rogers, 9 pages, N/Pub.

REVENUE RULINGS TAXATION: Application of Tennessee sales and use tax to computer software consulting services. Department of Revenue Letter Ruling 13-21, 11/25/13, 9 pages.

TAXATION: Application of Tennessee business tax to service provider. Department of Revenue Letter Ruling 13-25, 12/20/13, 6 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: