TAM-BYTES

October 27, 2014
Vol. 17, No. 43
2014 TAM CLE CALENDAR

Webinar
“Ethics: Recent Developments from the Board of Professional
Responsibility,” 60-minute webinar presented by Eileen Burkhalter Smith,
disciplinary counsel with the Board of Professional Responsibility, on
Wednesday, December 10, 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 www.mleesmith.com

On-Site Events
Law Conference for Tennessee Practitioners
COMING NEXT WEEK!!

Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs
TOPICS: Overview of the changes to the workers’ compensation law for
injuries occurring on or after July 1, 2014, as well as how claims will be
decided by the claims courts; compliance issues for attorneys subject to
HIPAA; latest developments in medical malpractice, including how the
appellate courts have ruled on compliance with the pre-suit notice and
certificate of good faith requirements; how to embrace your inner digital lawyer
and get up to date on issues such as mobile computing, file management, and
the risks of “going mobile”; what every litigator needs to know about business
entity laws in Tennessee; latest developments in the family law area; checklist
for provisions to be included in a will today; recent changes to the rules on
computer calls; how to use a little-known VA benefit to aid your clients;
overview of the administrative process in Tennessee from an experienced
chancellor; ins and outs of standards of review and the scope of the appellate
practice from an appellate court judge; tips from a chancellor on pretrial motion
practice; an insider’s perspective from the Chief Disciplinary Counsel on the
Board’s recent developments; how to avoid e-discovery ethical pitfalls and how
to handle social media, e-mail, video, and other electronically stored

information; and insight from a former trial judge and now special judge on
displaying professionalism in the practice of law.
FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge
Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen
Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy,
Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright
Daves & Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella
PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Kevin
Levine, DeSalvo & Levine PLLC; Helen S. Rogers, Rogers, Kamm & Shea;
Lucas R. Smith, Bass, Berry & Sims PLC; Richard Spore, Bass, Berry &
Sims PLC; Elizabeth Warren, Bass, Berry & Sims PLC; and John Watts,
Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.
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Tennessee Workers’ Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs
HIGHLIGHTS: Gain insight from new judges on the Court of Workers’
Compensation Claims and the Workers’ Compensation Appeals Board; get
review of changes that took effect on July 1 -- including the new permanent
partial disability formula, the new standard developing medical proof regarding
causation, adjustments to physician panel process, and modification issues; gain
insight from Department of Labor and Workforce Development directors on
employee misclassification, “new” request for assistance process, and
ombudsman program; hear a doctor’s perspective on everyday pain
management of workers’ comp claims; the Attorney Track features an extended
session, along with a panel discussion, on how the new court system will work,
as well as a session on ethical issues arising under the new law; the Employer
Track covers issues such as the new procedure for obtaining medical records,
claims management, workers’ comp defenses, best practices for preventing
retaliatory discharge, issues that arise when employees are injured in transit,
and supervisor training in managing claims under the new law; and get a review
of the latest cases from the Tennessee Supreme Court and the Workers’
Compensation Appeals Panels.
FACULTY: Judge Tim Conner, Workers’ Compensation Appeals Board
judge; Chief Judge Ken Switzer, chief judge of the Court of Workers’

Compensation Claims; Judge Pam Johnson, Judge Allen Phillips, and Judge
Jim Umsted, of the Court of Workers’ Compensation Claims; Robert
Durham, Director of Benefit Review with the Department of Labor &
Workforce Development; Richard Murrell, Director of Quality Assurance
with the Department of Labor & Workforce Development; Scott Yarbrough,
Director of the Compliance Program at the Department of Labor & Workforce
Development; attorneys Mary Dee Allen, Fred Baker, Philip Baker, Leslie
Bishop, Kitty Boyte, Allison Cotton, John Dreiser, Jason Ensley, Pele
Godkin, Greg Grisham, Steve Karr, Mary Beth Maddox, Blake Matthews,
Julie Reasonover, and Kenny Veit, and Dr. Jeffrey Hazlewood, who
practices physical medicine and rehabilitation in both Lebanon and
Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.
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Family Law Conference for Tennessee Practitioners
Thursday & Friday, December 4-5
Nashville School of Law
TOPICS: The Family Law Conference for Tennessee Practitioners packs two
days with judges and leading authorities delivering critical family law practice
guidance on the hottest topics and some of the most complex issues you’ll face,
including, the impact of current technology on divorce discovery, obtaining
restraining/protection orders in cases involving domestic violence, the standard
for changing “custody,” the effect of cohabitation on alimony, common
evidentiary issues in domestic relations litigation, relocation of the primary
residential parent, drafting tips for prenuptial agreements, agency and DCS
adoption issues, factors to consider in making an “equitable” division of a
marital estate, a wireless and paperless law office, imputing income to an
unemployed/underemployed parent, ethical considerations for family law
practitioners, and locating, valuing, and dividing assets.
FACULTY: Judge Mike Binkley, circuit court, 21st Judicial District; Judge
Robert L. Childers, Shelby County circuit court; Judge Jeff Hollingsworth,
Hamilton County circuit court; and Judge Phillip Robinson, Davidson County
circuit court; and attorneys, Amy J. Amundsen, Memphis; Rebecca Byrd,
Franklin; Dawn Coppock, Strawberry Plains; Lisa J. Hall, Knoxville; Larry
Hayes, Jr., Nashville; Sean Martin, Nashville; Kevin Shepherd, Maryville;
and Greg Smith, Nashville.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.
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Tennessee Real Estate Law Conference
Friday, December 12
Nashville School of Law
TOPICS: Learn about commercial development and financing in today’s
economy; hear about pitfalls in foreclosure proceedings, loss mitigation
solutions, and effects of bankruptcy on foreclosure; get up to date on the new
title insurance endorsements that affect both residential and commercial real
estate law; learn about the impact of the ability-to-pay and mortgage servicing
rules that took effect on January 10; get tips on how to perfect and enforce liens
against real property; get refreshed on ethical concerns facing real estate
attorneys, such as conflict of interest and multiple representations; get up to
date on recent developments in the appellate courts and the legislature; and hear
about other “hot” topics that affect real estate practitioners in 2014 and beyond.
FACULTY: Kim A. Brown, Sherrard & Roe PLC; Joshua R. Denton, Gullett
Sanford Robinson & Martin PLLC; Robert C. Goodrich Jr., Stites &
Harbison, PLLC; Linda W. Knight, Gullett Sanford Robinson & Martin
PLLC; David Wilson Long, Long, Ragsdale & Waters, P.C.; Madison L.
Martin, Stites & Harbison PLLC; William L. (Billy) Rosenberg, First
American Title Insurance
*Earn up to 7.5 hours of CLE credit, including 1 hour of DUAL credit.
For more information or to register for any of TAM’s CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEK’S TAM-Bytes
 Court of Appeals rules satisfaction is not defense to enrollment of foreign
judgment;
 Court of Criminal Appeals rules trial judge did not abuse discretion in
admitting testimony regarding prior physical abuse and threats made by
defendant against child sexual abuse victim’s mother when such evidence
was relevant to defendant’s intent and motivation to assault victim; and
 Court of Criminal Appeals holds defendant was denied his constitutional
right to jury trial when defendant never signed written waiver of jury
trial, and although trial judge asked prosecutor at scheduling hearing
whether defense would like to “do this jury or nonjury,” defendant never
acknowledged that he was waiving jury trial.

WORKERS’ COMP PANEL
WORKERS’ COMPENSATION: When employee alleged that she suffered
lower back injury in course of her employment as school counselor, evidence
did not preponderate against trial court’s finding that employee’s injury did not
occur in course of her employment when evidence raised substantial doubts as
to employee’s testimony about cause of her back condition and when trial court
found more credible testimony of orthopedic surgeon who opined that
employee’s injury was consistent with initial account she had given of injury, in
which she attributed her pain to lifting her husband after his stroke, and also
opined that employee’s degenerative disc disease and disc protrusion could be
result of aging over time and could occur in absence of trauma. Hawkins v.
Maury County Board of Education, 10/23/14, Nashville, Anderson, 11 pages.
http://www.tncourts.gov/sites/default/files/hawkinsp_opnjo.pdf

COURT OF APPEALS
COMMERCIAL LAW: When McCoy Motors, Inc. borrowed $90,000 from
Kinkread, note provided that loan could be renewed at end of 12-month periods
and that, if Kinkread died before note was fully paid, principal of unpaid
balance would be paid to McCoys, Kinkread’s attorney-in-fact (Cradic)
informed Mr. McCoy that Kinkread was demanding that note be paid in full,
McCoy refused to pay in full but continued to make payments on note,
Kinkread, through Cradic, filed suit against McCoys to compel full payment on
note, Kinkread died, and Cradic pursued suit, trial court properly awarded
judgment to McCoy Motors as McCoy could not unilaterally keep agreement
going on his own terms in spite of Kinkread’s expressed demands; McCoy
cannot, by wrongful refusal of McCoy Motors to pay balance due as demanded
by Kinkread, keep note unpaid until Kinkread’s death in order to trigger
provision for balance of principal to go to McCoys, and hence, trial court
properly entered judgment against McCoys individually for monies, balance of
note, they never should have received initially. Cradic v. McCoy Motors Inc.,
10/20/14, ES, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/cradicmopn.pdf

PROPERTY: Trial court did not err in determining that easement for joint
driveway had not been abandoned by defendants or by their predecessors in title
when driveway had been jointly used for both egress and ingress, and sidewalk
that goes to joint driveway had not been removed or abandoned; trial court did
not abuse discretion in holding that parties were equally responsible for upkeep

and maintenance of shared driveway. Roland v. Bridwell, 10/20/14, ES,
McClarty, 11 pages.
http://www.tncourts.gov/sites/default/files/rolandopn.pdf

CIVIL PROCEDURE: Trial court properly granted summary judgment in
favor of plaintiff in action to enroll California judgment; satisfaction of
judgment – even if disputed – is immaterial at enrollment phase, and hence, is
not defense to enrollment of foreign judgment. Guseinov v. Synergy Ventures
Inc., 10/21/14, WS at Nashville, Stafford, 11 pages.
http://www.tncourts.gov/sites/default/files/guseinovg.opn_.pdf

CIVIL PROCEDURE: In case in which plaintiff raised healthcare liability and
fraud claims, to extent that trial court dismissed, as moot, plaintiff’s motion for
continuance and extension of time to allow her to obtain legal counsel to clarify
her claims and pleadings, trial court’s action is reversed; dismissal of action for
failure to state claim was premature in light of procedural posture of this matter
and disposition of issue with respect to dismissal of motion to continue in order
to obtain legal counsel; case is remanded with instructions to grant plaintiff’s
prayer for reasonable time in which to retain legal counsel. Ibrahim v.
Murfreesboro Medical Clinic Surgi Center, 10/17/14, WS at Nashville,
Goldin, 8 pages.
http://www.tncourts.gov/sites/default/files/ibrahimshemeka.opn_.pdf

COURT OF CRIMINAL APPEALS
EVIDENCE: In rape of child and aggravated sexual battery case, trial judge
did not abuse discretion in admitting testimony regarding prior physical abuse
and threats made by defendant against victim’s mother when such evidence was
relevant to defendant’s intent and motivation to assault victim, being that “he
committed these threats to have an opportunity to abuse the child or that he
abused the child because he was upset at the mother.” State v. Bolton, 10/21/14,
Jackson, Glenn, 12 pages.
http://www.tncourts.gov/sites/default/files/boltondelquanopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of harassment,
trial court erred by denying defendant his constitutional right to jury trial when
defendant never signed written waiver of jury trial, and although trial judge
asked prosecutor at scheduling hearing whether defense would like to “do this
jury or nonjury,” defendant never acknowledged that he was waiving jury trial;
given that record does not reflect that defendant understood his right to jury trial
or that trial court ever advised him of that right, trial court’s judgment is

reversed, and case is remanded for new trial. State v. Talafhah, 10/21/14,
Nashville, Montgomery, 6 pages.
http://www.tncourts.gov/sites/default/files/talafhahibrahimopn.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to two
counts of possession of cocaine with intent to sell and two counts of simple
possession of marijuana, and defendant later filed motion to correct illegal
sentence pursuant to TRCrP 36.1 – even though defendant committed felony
offense of possession of cocaine with intent to sell while released on bail in two
prior cases, he erroneously received concurrent sentences – trial court erred by
summarily dismissing defendant’s motion because illegal sentence may be
challenged at any time under TRCrP 36.1; by its very language, TRCrP 36.1
requires that once defendant has stated colorable claim, he must be afforded
counsel, and trial court must hold hearing on motion unless waived by all
parties. State v. Robinson, 10/22/14, Knoxville, Page, 4 pages.
http://www.tncourts.gov/sites/default/files/robinsonomaropn.pdf

BOARD OF JUDICIAL CONDUCT
PROFESSION OF LAW: Davidson County general sessions judge receives
public reprimand for his actions in connection with domestic violence case. In
re Moreland, 10/22/14, Craft, 3 pages.
https://www.tncourts.gov/press/2014/10/22/board-judicial-conduct-reprimands-davidson-county-general-sessions-judge-casey

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