TAM-BYTES

J une 23, 2014

Vol. 17, No. 25
2014 TAM CLE CALENDAR

Webinars
HIPAA and Attorneys: What Lawyers Must Do to Comply, 60-minute webinar
presented by Gordon Boutwell, Franklin attorney, on Wednesday, July 9, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

The Attorneys Online Marketing Essentials: Using Websites and Social Media
to Promote Your Practice, 60-minute webinar presented by David Anthony,
Nashville attorney, on Thursday, July 10, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

2014 Tennessee Tort Law Update: Recent Appellate Court Decisions, 60-
minute webinar presented by Rebecca Blair, Brentwood attorney, on Wednesday,
July 16, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Paternity, Grandparent Visitation, and Other Disputes in Tennessee, 60-minute
webinar presented by Kevin Shepherd, Maryville attorney, on Thursday, July 17, at
2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Discovery Rules and Sanctions in Tennessee: What the Rules Really Mean for
Attorneys, 60-minute webinar presented by Candi Henry, Nashville attorney, on
Thursday, July 24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury
Trials, 60-minute webinar presented by William L. Pfeifer, Jr., Alabama
appellate attorney, on Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit


Live Event

Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26
Nashville School of Law

TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice,
including the latest products liability developments, trial tips from a trial judge,
handling medical records and private information, limitations on the use of HIPAA
protected documents in litigation, Affordable Care Act concerns, auto insurance
policies, negotiating with insurance adjusters, caps on damages, Medicare set-asides,
and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs and
defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven Fuller,
Bryan Moseley, David Randolph Smith, and Mathew Zenner.

*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit


IN THIS WEEKS TAM-Bytes

Supreme Court, in issue of first impression, says that General Assembly did not
intend to define term pending in fabricating evidence statute, TCA 39-16-
503, in manner redundant with alternative statutory term in progress, and that
term pending means impending;
In health care liability action, Court of Appeals holds that plaintiffs failed to
substantially comply with TCA 29-26-121(a)(2)(E) setting out what is to be
included in HIPAA medical authorization form;
In health care liability suit, Court of Appeals affirms trial courts ruling that
plaintiff did not establish extraordinary cause to excuse noncompliance with
pre-suit notice requirements; and
Court of Criminal Appeals rules TCA 39-13-524(d)(1), community
supervision for life (CSL) statute applicable to all sex offenders, which
requires person to be under jurisdiction, supervision, and control of
Department of Correction in same manner as person under parole supervision,
does not violate Tenn. Const. Art. II, Sec. 3, which vests legislative power in
General Assembly.



SUPREME COURT

CRIMINAL LAW: General Assembly did not intend to define term pending in
fabricating evidence statute, TCA 39-16-503, in manner redundant with alternative
statutory term in progress; term pending in statute means impending;
making false report offenses defined in TCA 39-16-502(a)(1), (a)(2), and (a)(3)
constitute separate offenses under multiple description test and do not violate
double jeopardy; unit of prosecution in TCA 39-16-502(a)(1) is initiation of false
report or statement concerning incident or offense; unit of prosecution in TCA 39-
16-502(a)(2) is making false report or statement in response to legitimate inquiry by
law enforcement officer concerning incident or offense. State v. Smith, 6/19/14,
Nashville, Holder, unanimous, 26 pages.
www.tncourts.gov/sites/default/files/smithglover_opn.pdf


WORKERS COMP PANEL

WORKERS COMPENSATION: Claims Commission properly dismissed claim by
claimant, nurse employed by Middle Tennessee Mental Health Institute, who believed
that she had contracted tuberculosis when her hand came into contact with patients
blood; although claimant is nurse, claims commissioner properly held that self-
diagnosis is not admissible as evidence; because claimant presented no expert medical
testimony that she was infected with or carried tuberculosis, she did not establish
workers compensation claim by preponderance of evidence. Wheetley v. State,
6/25/14, Nashville, Koch, 6 pages.
www.tncourts.gov/sites/default/files/wheetleymaryopnjo.pdf


COURT OF APPEALS

TORTS: In health care liability action, plaintiffs failed to substantially comply with
TCA 29-26-121(a)(2)(E) when HIPAA medical authorization form failed to
specifically identify the person(s) or class of persons authorized to make requested
use or disclosure and the person(s), or class of persons, to whom the covered entity
may make requested use or disclosure form only permitted use or disclosure of
medical records by plaintiffs counsel and when plaintiff signed form in her
representative capacity but failed to provide description of her authority to act for
decedent, and due to plaintiffs errors, defendants were not legally authorized to use
pertinent medical records to mount defense, despite fact that records may have already
been in their possession; trial court did not abuse discretion by failing to excuse
compliance. Roberts v. Prill, 6/26/14, ES, McClarty, 9 pages.
www.tncourts.gov/sites/default/files/robertsopncorr.pdf

TORTS: In health care liability suit, when attorney for plaintiff inadvertently failed to
provide defendant health care providers with medical authorizations that complied
with TCA 29-26-121(a)(2)(E), trial court did not abuse discretion in holding that
plaintiff did not establish extraordinary cause that would excuse noncompliance with
statutory requirements; evidence did not preponderate against trial courts finding that
plaintiffs attorney learned of his deployment to Afghanistan until well after pre-suit
notices were sent; when attorney receives notice that he or she will be deployed to
Afghanistan shortly before he or she must file required pre-suit notice and attorney is
anxious and concerned about upcoming deployment, plaintiff may be able to establish
extraordinary circumstances within meaning of statute, but evidence in record lacks
force and clarity of plaintiffs argument, and evidence supports only fragments of
facts on which plaintiff relies. Hawkins v. Martin, 6/23/14, WS, Kirby, 12 pages.
www.tncourts.gov/sites/default/files/hawkinsdmopn.pdf

TORTS: In suit by former members of Covenant Presbyterian Church of Nashville
(Covenant) alleging that defendants Covenant, Bachmann, Eades, Avery, Robinson,
Nashville Presbytery, and Presbyterian Church in America (P.C.A.) committed series
of acts or omissions damaging plaintiffs in furtherance of illicit act by defendants to
fraudulently conceal from appropriate authorities unreported and unprosecuted child
sexual abuse by Perry, founder and former officer of Covenant, trial court properly
dismissed complaint against Nashville Presbytery and P.C.A. on plaintiffs vicarious
liability claim; trial court properly dismissed claim for false light invasion of privacy
because allegations are not sufficient to meet publicity requirement; trial court
properly dismissed plaintiffs claim for malicious harassment when plaintiffs did not
assert claim based on race, color, ancestry, religion, or national origin; trial court erred in
dismissing plaintiffs claim for assault when allegations of complaint, taken as true,
establish that defendants created an apprehension of harm in plaintiffs; trial court
properly dismissed plaintiffs claims for intentional infliction of emotional distress,
negligence, and negligent hiring, training, supervision and retention; plaintiffs cannot
rely upon theory of fraudulent concealment to support their allegation of civil conspiracy
because they have not alleged that defendants have concealed plaintiffs injury. Davis v.
Covenant Presbyterian Church, 6/23/14, MS, Bennett, 14 pages.
www.tncourts.gov/sites/default/files/davisa.opn_.pdf

COMMERCIAL LAW: Trial court properly dismissed breach of contract claim in
case in which plaintiff alleged that defendant bank abused its discretion in accelerating
her debt when it knew that it held funds of plaintiff in trust sufficient to cover her debt
to bank; cause of action for wrongful acceleration of note in default is not existing
cause of action in Tennessee; even if such cause of action were to be recognized, it
would not be applied under circumstances where bank did what it plainly was allowed
to do under contract between parties. Snyder v. First Tennessee Bank N.A., 6/24/14,
ES, Swiney, 6 pages.
www.tncourts.gov/sites/default/files/snyderjwopn.pdf

COMMERCIAL LAW: Clear intent of parties as gleaned from ordinary meaning of
plain language contained within four corners of contract to lease property was that
defendant personally guaranteed contract when he executed second signature signature
line was executed by defendant as Gary E. Burns, CEO, directly below first signature
line was second signature line immediately preceded by words PERSONALLY
GURANTEED BY: and followed by words 3 Daughters Media Inc., and plaintiff
also executed this second signature line as Gary E. Burns CEO. Wise North Shore
Properties LLC v. 3 Daughters Media I nc., 6/23/14, ES, Swiney, 5 pages.
www.tncourts.gov/sites/default/files/wisenorthshorepropertiesllcopn.pdf

FAMILY LAW: Paternal grandparents were awarded temporary custody of child
in 10/08, in 3/09, mother filed petition seeking to have childs custody returned to her,
and trial court found that there was no showing of material change in circumstances
warranting change in custody, mother was entitled to invoke doctrine of superior
parental rights in her motion to modify custody, and trial court erred by instead
subjecting her motion to modify to material change in circumstances standard.
Clark v. Cooper, 6/19/14, ES, Susano, 7 pages.
www.tba.org/sites/default/files/clarkd_061914.pdf

FAMILY LAW: In case in which parties marital dissolution agreement provided that
husband would pay wife alimony in futuro until death, remarriage, or until a third
person not the Wifes child, moves into the Wifes residence, evidence did not
preponderate against trial courts termination of husbands alimony in futuro obligation
to wife based upon fact that wifes mother moved into wifes home; despite fact that
wifes mother eventually moved out of wifes residence, evidence supported finding
that wifes mother did move into wifes residence for period of time, and wifes
mothers stay at wifes residence was clearly not simply visit wifes mother changed
her permanent address to wifes address and moved not only her clothes, but also some
of her furniture to wifes residence; question of whether wifes mother provided any
financial support to wife are both irrelevant to question of whether suspensory
condition occurred. Myrick v. Myrick, 6/19/14, WS at Nashville, Stafford, 12 pages.
www.tncourts.gov/sites/default/files/myrickj.opn_.pdf

FAMILY LAW: In case in which marital residence was sold during pendency of
parties divorce proceeding, at time of sale, parties learned that there was lien against
property arising from $69,953 judgment rendered against husband, and lien was paid
from proceeds of sale, resulting in parties realizing $122,644 from sale, which trial
court divided equally between parties, although judgment lien was marital debt and
subject to equitable division judgment resulted from suit for breach of contract and
misrepresentation brought by former sales manager against car dealership where
husband was general sales manager against dealership, husband, and others because
husband alone incurred judgment debt as result of his malfeasance and because
husband was best able to repay debt, trial courts equal division of judgment is
reversed, and final decree is modified to allocate full responsibility for judgment to
husband. Luplow v. Luplow, 6/19/14, MS, Dinkins, 17 pages.
www.tncourts.gov/sites/default/files/luplowm.opn_.pdf

CIVIL PROCEDURE: When trial court originally ruled in favor of defendant sellers
in suit over sale of used vehicle, finding that plaintiff buyer failed to prove fraud or
misrepresentation, trial court found that defendants had violated one subsection of
Tennessee Consumer Protection Act (TCPA) but that plaintiff had failed to prove
actual damages, and dismissed complaint, upon considering plaintiffs motion to alter
or amend, trial court changed its decision and found that defendants had engaged in
fraud and rescinded sale, and upon considering plaintiffs second motion to alter or
amend, trial court clarified ruling and awarded attorney fees to plaintiff, trial court did
not err in considering plaintiffs second motion to alter or amend, and motion served
to toll time period for filing notice of appeal; either party may challenge amended
judgment via motion to alter or amend; trial court abused discretion in granting
plaintiffs first motion to alter or amend judgment when newly discovered evidence
was in plaintiffs possession all along, and it was only newly discovered because no
one identified discrepancy in notary stamps prior to or during trial; plaintiff was not
entitled to award of attorney fees when trial court dismissed his claim pursuant to
TCPA for failure to prove actual damages. Legens v. Lecornu, 6/26/14, WS, Highers,
concurrence by Kirby, 24 pages.
www.tncourts.gov/sites/default/files/legensdereckcopn.pdwww.tba.org/sites/default/files/legensd_CON_062614.pdf


COURT OF CRIMINAL APPEALS

CONSTITUTIONAL LAW: TCA 39-13-524(d)(1), community supervision for
life (CSL) statute applicable to all sex offenders, which requires person to be under
jurisdiction, supervision, and control of Department of Correction in same manner as
person under parole supervision, does not violate Tenn. Const. Art. II, Sec. 3, which
vests legislative power in General Assembly; by legislative enactment, any
individualized conditions of CSL must be necessary to protect public from defendant
committing additional sex offense and promote rehabilitation of defendant, and
standards in statute enable both executive branch and judicial branch to determine if
executive branch is carrying out intent of General Assembly; defendants conviction
for violation of condition of CSL by failure to successfully complete sex offender
treatment does not violate defendants due process rights; one time prosecution of
defendant for violating condition of CSL by failing to successfully complete his sex
offender treatment for reason that he would not admit to his criminal conduct is not
arbitrary, irrational, improperly motivated, or so egregious to shock conscience. State
v. Grainger, 6/18/14, Nashville, Woodall, 12 pages.
www.tncourts.gov/sites/default/files/graingerrandallopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial judge did not err in denying
defendants motion to suppress evidence seized as result of stop of defendants vehicle
when officer had reasonable suspicion to believe that defendant was violating TCA
55-8-123, which requires that vehicle shall be driven as nearly as practicable entirely
within a single lane officer testified that he first saw defendants vehicle drifting
within its own lane, that he increased his speed to take closer look and activated his
cruisers dashboard camera, and that as he reduced distance between his cruiser and
defendants vehicle, he saw defendant fail to maintain her lane of travel on two
occasions, first drifting into lane to its right, then to left. State v. Hiyama, 6/17/14,
Nashville, Ogle, 6 pages.
www.tncourts.gov/sites/default/files/hiyamajacquelineopn.pdf




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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