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TAM-BYTES April 7, 2014 Vol. 17, No.

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2014 TAM CLE CALENDAR

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.

PROGRAM HIGHLIGHTS:
         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 today’s 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: www.mleesmith.com/tn-med-mal

*************************************************************** 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 *This conference is ideal for all attorneys – whether you’re tech-savvy or new to cloud computing! 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

PROGRAM HIGHLIGHTS:
           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: www.mleesmith.com/tn-tech

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Webinars
“New RESPA Rules: Help for Homeowners Facing Foreclosure,” 60-minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 17, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. “Probate Litigation in Tennessee: Learn the Impact of 2013 Changes and What’s Ahead,” 60-minute webinar presented by Rebecca Blair, Brentwood attorney, on Thursday, April 17, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit. “Disability Offsets: Traps for the Unwary Attorney and Tips for Avoiding Them,” 60-minute webinar presented by Grayson Smith Cannon, Goodlettsville attorney, on Tuesday, May 13, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit. “Transvaginal Mesh and Bladder Slings: Concerns and Legal Remedies,” 60minute webinar presented by Leigh O’Dell, Montgomery attorney, on Thursday, May 15, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEK’S TAM-Bytes  Supreme Court says guilty plea expunged after successful completion of judicial diversion is not conviction subject to collateral review under PostConviction Procedure Act;  In medical malpractice case in which plaintiff filed with complaint certificate of mailing from U.S. Postal Service stamped with date of mailing but did not include affidavit of party mailing pre-suit notice, Court of Appeals holds that plaintiff substantially complied with TCA 29-26-121(a) and that trial court did not err in allowing plaintiff to file affidavit of party mailing pre-suit notice after complaint was filed;  Court of Appeals holds fact that someone may have made fraudulent misrepresentations or told lies in past, does not preclude another party from ever reasonably relying upon representations by lying party in future; and  Court of Criminal Appeals says that TCA 39-17-417, which designates sale or delivery of .5 gram or more of “any substance containing cocaine” as Class B felony, is not unconstitutionally vague and that weighing of substance containing cocaine along with any cutting agents or carrier medium does not amount to denial of due process.

SUPREME COURT CRIMINAL PROCEDURE: In case in which petitioner entered guilty plea to misdemeanor charge of patronizing prostitution and was granted judicial diversion, after successfully completing his diversion, petitioner’s criminal record was expunged, and over three years later, petitioner filed for post-conviction relief, alleging that trial counsel failed to advise him of potential immigration consequences of his guilty plea, trial court properly dismissed petition as time-barred; guilty plea expunged after successful completion of judicial diversion is not conviction subject to collateral review under Post-Conviction Procedure Act. Rodriguez v. State, 4/4/14, Nashville, Holder, unanimous, 8 pages.
http://www.tncourts.gov/sites/default/files/rodriguezjopn.pdf

WORKERS’ COMP PANEL WORKERS’ COMPENSATION: In case in which employee alleged that he sustained compensable aggravation of pre-existing spinal condition, evidence did not preponderate against trial court’s finding that employee did not sustain compensable injury when trial court accepted opinion of orthopedic surgeon specializing in

treatment of spinal problems who diagnosed degenerative disc disease and opined that any advancement of employee’s condition was caused by “activities of life” and was not related to employee’s work activities. Associated Wholesale Grocers v. Ling, 4/1/14, Nashville, Harris, 7 pages.
http://www.tncourts.gov/sites/default/files/associated_wholesale_groceropnjo.pdf

WORKERS’ COMPENSATION: Trial court properly dismissed workers’ compensation suit alleging that employee sustained gradual injuries to both shoulders because employee failed to exhaust her administrative remedies when employee admitted that parties specifically removed shoulder claim from consideration at benefit review conference, and hence, benefit review conference had not been held concerning employee’s alleged shoulder injuries prior to filing of suit. Gray v. Zanini Tennessee Inc., 4/1/14, Nashville, Harris, 6 pages.
http://www.tncourts.gov/sites/default/files/grayjennifer.opnjo_.pdf

COURT OF APPEALS TORTS: In medical malpractice case in which plaintiff filed with complaint certificate of mailing from U.S. Postal Service stamped with date of mailing but did not include affidavit of party mailing pre-suit notice, plaintiff substantially complied with TCA 29-26-121(a), and trial court did not err in allowing plaintiff to file affidavit of party mailing pre-suit notice after complaint was filed; plaintiff must substantially comply, rather than strictly comply, with requirements of TCA 29-26-121(a), and when plaintiff has provided sufficient notice to defendant under statute and fails to comply with all strictures of statute, there is no reason why court should not allow plaintiff to rectify oversight by filing required proof late. Chambers v. Bradley County, 3/28/14, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/chamberscjopn.pdf

TORTS: In case in which plaintiff, attendee at “Relay for Life” event, who fell at lodge owned and operated by defendant, filed suit claiming negligence because parking area had no lighting on evening of fall, trial court erred in granting summary judgment to defendant when defendant’s representative in charge of lodge on evening in question had actual knowledge, prior to plaintiff’s fall, of lights in question being inoperative; by showing actual knowledge, plaintiff demonstrated that owner had duty to act reasonably under circumstances and remedy condition that caused injury to plaintiff; it was question for jury as to whether defendant, having knowledge, took sufficient action or steps in responding or whether defendant’s failure to take further action was reasonable under circumstances; another genuine issue of material fact was whether defendant could or should have become aware of dangerous condition through exercise of reasonable care, such as inspecting and testing operation of all

lights at lodge as well as recognizing lack of lighting in parking lot. Christian v. Ayers L.P., 3/28/14, ES, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/christianopn.pdf

TORTS: In suit against Tipton County for injuries inmate sustained as result of severe hypertensive crisis that occurred while he was confined in Tipton County jail, evidence preponderated against trial court’s finding that Tipton County did not breach duty of care with regard to inmate; evidence was sufficient to establish that Tipton County breached duty of care by failing to provide inmate access to proper medical treatment during his confinement, specifically by failing to give inmate physical within 14 days of his confinement, as required by Rules of Tennessee Corrections Institute, Minimum Standards for Local Correctional Facilities, failing to consider results of earlier physical at any time after inmate began exhibiting symptoms, failing to ensure that inmate was examined and diagnosed by physician at any time during his confinement once he began to exhibit symptoms, as required by Tipton County’s own Correctional Facility Policy and Procedure Manual, and failing to take inmate’s blood pressure at any time prior to day inmate complained of dizziness and loss of vision and was transported to emergency room and found to have suffered from renal failure, stroke, heart attack, and other conditions. Payne v. Tipton County, 3/31/14, WS, Stafford, 17 pages.
http://www.tncourts.gov/sites/default/files/christianopn.pdf

INSURANCE: Plaintiffs’ uninsured motorist (UM) carrier complied with requirements of TCA 56-7-1206(k), thereby preserving its subrogation rights and its declination to submit to arbitration under statute, when UM carrier, through its attorney, timely sent letter to plaintiffs’ attorney with check for $25,000 – policy limits of defendants’ liability coverage and full amount of offer made by defendants’ liability insurance company – with courtesy copy of letter to counsel for defendants’ liability carrier; although letter did not expressly say that UM carrier elected to decline binding arbitration, it made specific reference to TCA 56-7-1201 et seq., its right to jury trial, and its right to subrogation, and it also transmitted its check to plaintiffs in amount identical to amount of offer by defendants’ liability carrier; local rule – Rule 7 of Local Rules of Third Judicial District, which required response to motion to be filed and served on movant no later than 30 days after motion was filed – did not operate to abrogate UM carrier’s rights. Coffey v. Hoffman, 3/28/14, ES, Susano, 9 pages.
http://www.tncourts.gov/sites/default/files/coffeylfopn.pdf

COMMERCIAL LAW: In suit involving liability on personal guaranties securing debt of transportation company, trial court did not err in ruling that actions of lender’s president was imputed to lender, that sale of transportation company was not sham, that no fraud was committed, and that guaranties at issue were continuing; trial court was entitled to consider both underlying credit agreement and guaranties in determining whether duty of good faith was breached; trial court’s judgment with

regard to its findings of conspiracy, violation of Tennessee Consumer Protection Act, and breach of duty of good faith are vacated; trial court’s judgment that guarantors may avoid obligations under guaranties is vacated; case is remanded for further findings of fact and conclusions of law on these issues. SecurAmerica Business Credit v. Schledwitz, 3/28/14, WS, Stafford, 59 pages.
http://www.tncourts.gov/sites/default/files/securamopn.pdf

CONTRACTS: In case in which employee and employer were preparing to arbitrate employee’s age discrimination claim when parties began discussing settlement, employer made offer to settle employee’s claim before incurring bulk of expenses, offer did not include specific time for acceptance, but employee was aware of employer’s motivation to avoid paying fees associated with arbitration, employee attempted to accept offer of settlement three days before arbitration was scheduled, which was after employer was required to pay $9,000 deposit for arbitration and incurred other necessary expenses in preparation for hearing, employer informed employee that its offer had lapsed and was no longer open, and employee sued for breach of contract, trial court properly ruled employee did not accept employer’s offer within reasonable period of time and that there was no settlement contract to enforce; “reasonable time” for employer’s offer to remain open had passed by time employee sought to accept offer. Reeves v. Pederson-Kronseder LLC, 3/28/14, MS, Cantrell, 8 pages.
http://www.tncourts.gov/sites/default/files/reevestopn.pdf

CONTRACTS: Plaintiffs sued defendants for breach of contract and specific performance with regard to sale of corporation that owned and operated retail clothing stores, defendants asserted counterclaim for fraud and affirmative defense of fraud in inducement with regard to amendment to stock purchase agreement entered into by parties, and trial court granted plaintiffs’ motions for summary judgment, holding that release language contained in amended agreement was sufficient to release defendants’ claims of fraud including fraud in inducement, release language contained in amended agreement was not sufficient to release claims of fraud when language in amended agreement waiving “any and all claims, liabilities, and causes of action” does not specifically address claims of fraud; there were genuine issues of material fact as to issue of defendants’ reasonable reliance upon representations made by plaintiff; fact that someone may have made fraudulent misrepresentations or told lies in past, does not preclude another party from ever reasonably relying upon representations by lying party in future. Holliday v. Patton, 3/31/14, WS, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/hollidaybeopn.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s award to wife of $7,500 per month as alimony in futuro when wife, elementary school teacher, was economically disadvantaged in comparison to husband – wife left her profession, by agreement of parties, to raise parties’ three children and tend to household while husband worked virtually non-stop, wife’s efforts to return to work in later years were

hampered by chronic foot and back problems that prevented her from standing or walking for long periods, and fact that wife worked for about four months and earned gross income of about $375 per week does not cause totality of evidence to preponderate against trial court’s finding that wife is economically disadvantaged spouse who cannot be rehabilitated; trial court erred in awarding wife $36,200 in retroactive child support when, even after parties officially “separated,” parties continued to live together in marital home until around 6/1/08, date upon which any child support obligation began, and husband more than met his obligation to support his children during pendency of divorce – trial court’s 2010 temporary support order addressed both temporary alimony and temporary child support, which husband paid to wife, and husband also continued his practice of financing children’s educations and other major expenses with regular contributions of $20,000 per year to each child’s individual education account; trial court’s award of $63,200 for “retroactive” child support is reversed. Layman v. Layman, 3/28/14, ES, Susano, 20 pages.
http://www.tncourts.gov/sites/default/files/laymanmaopn.pdf

CIVIL PROCEDURE: In divorce case, trial judge did not abuse discretion in denying mother’s recusal motion when ex parte communications between trial judge and guardian ad litem, appointed for parties’ daughter, to confirm minor factual matter, i.e., whether mother had pool at her residence, did not create appearance that trial judge was biased, prejudiced, or partial to father. Runyon v. Runyon, 3/31/14, WS, Kirby, 18 pages.
http://www.tncourts.gov/sites/default/files/runyonsopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of first degree premeditated murder when defendant and victim had partnered in several drug transactions throughout day leading up to shooting, victim and his friend were so desperate for drugs that they exchanged $2,000 television for $100 worth of crack cocaine, when men attempted to repay $100 to get television, defendant refused to return it to them, although two men were irritated that defendant would not return television, they continued to purchase drugs from defendant, during group’s last transaction, defendant gave drugs to men while they were sitting in car on side of road, victim again asked defendant to return television, defendant claimed that he no longer had television, victim then instructed his friend to drive off, taking drugs without paying for them, and defendant immediately pulled out gun and began shooting, killing victim and injuring victim’s friend; state established that shooting was premeditated act, occurring after men tried to steal drugs, which would allow defendant to keep $2,000 television. State v. Hendricks, 4/3/14, Knoxville, dissent by Witt, 15 pages.
http://www.tncourts.gov/sites/default/files/hendricksmarquisopn.pdf http://www.tncourts.gov/sites/default/files/hendricksmarquisdashawndis.pdf

EVIDENCE: There is distinction between evidence of prior acts of violence by victim used to corroborate defense theory that victim was first aggressor and that used to establish defendant’s fear of victim; before defense may introduce evidence of victim’s prior acts of violence in order to corroborate claim that victim is first aggressor, evidence must establish issue which makes such evidence relevant, and, therefore, admissible. State v. Johnson, 3/31/14, Jackson, Ogle, 16 pages.
http://www.tncourts.gov/sites/default/files/johnsonterryopn_1.pdf

CRIMINAL LAW: TCA 39-17-417, which designates sale or delivery of .5 gram or more of “any substance containing cocaine” as Class B felony, is not unconstitutionally vague; weighing of substance containing cocaine along with any cutting agents or carrier medium does not amount to denial of due process; Tennessee courts have consistently followed “market oriented approach” with respect to weight of controlled substances, with relevant weight under statute being that of substance containing cocaine, including any cutting agents or carrier mediums, as long as substance is in its marketable or consumable form. State v. Watkins, 4/3/14, Knoxville, Bivins, 8 pages.
http://www.tncourts.gov/sites/default/files/watkinsdopn.pdf

EVIDENCE: In case in which defendant raped his 12-year-old daughter, who subsequently became pregnant as result of rape, trial court did not err in admitting paternity testing results even though laboratory, which held ASCLD accreditation for general forensic testing, lacked AABB paternity testing accreditation when laboratory’s accreditation is factor to be considering in weighing, but not admitting, evidence; while TCA 24-7-112 contemplates court-ordered or agency-ordered testing of child and parties and requires AABB laboratory accreditation, parties in paternity action may waive formal requirements of TCA 24-7-112 by submitting voluntarily to blood testing – defendant voluntarily provided his DNA to law enforcement officer. State v. Powell, 4/3/14, Jackson, Tipton, 12 pages.
http://www.tncourts.gov/sites/default/files/powellmelvinopn.pdf

ATTORNEY GENERAL OPINION GOVERNMENT: Proposed bill, which would prohibit any post-secondary educational institution from denying recognition or access to programs, funding, facilities, or scheduling of activities to student organization on basis of religious content of organization’s speech or exercise of organization’s rights with respect to choosing its leaders, is constitutionally suspect under First Amendment. Attorney General Opinion 14-41, 3/31/14, 3 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-41.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 state’s web site by clicking here: http://www.tncourts.gov