TAM-BYTES

November 17, 2014

Vol. 17, No. 46
2014 TAM CLE CALENDAR

Webinars
Ethics: Recent Developments from the Board of Professional
Responsibility, 60-minute webinar presented by Eileen Burkhalter Smith,
disciplinary counsel with the Tennessee Board of Professional Responsibility, on
Wednesday, December 10, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of DUAL credit.
Where Family Law and International Issues Collide: Relocation and Child
Abduction Issues, 60-minute webinar presented by Rebecca McKelvey
Castaeda, with Stites & Harbison in Nashville, on Thursday, December 11, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Social Security Disability Offsets: What Attorneys Must Know, 60-minute
webinar presented by Janet P. Cox, with Cox & Reynolds in Birmingham, AL,
on Tuesday, December 16, at 10 a.m. (Central), 11 a.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

On-Site Event
Tennessee Real Estate Law Conference
THIS Friday, December 12
Nashville School of Law
TOPICS: Learn about commercial development and financing in todays
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 TAMs CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court, in close case, says trial judges error in allowing state to
present evidence related to defendants viewing of adult pornography
during its case-in-chief while prosecuting defendant for rape of child and
aggravated sexual battery offenses committed against his two young
daughters, was harmless when jury knew that defendant was capable of
lying, and trial court and prosecution counseled jury not to use evidence as
propensity evidence for sexual misconduct;
Supreme Court holds defendants constitutional right against compelled
self-incrimination was not violated because defendant merely misplaced his
trust in confidante to whom he voluntarily confessed;
Court of Appeals affirms trial courts grant of summary judgment to Blount
Countys fire department and Blount County 911 Communication Center in
wrongful death action on behalf of resident who died in house fire allegedly
set by her ex-boyfriend;
Court of Appeals considers eligibility of substitute teacher for
unemployment compensation;
Court of Appeals affirms actions of trial court in terminating husbands
alimony obligation following his stroke and in not requiring husband to
liquidate his assets in order to continue to meet his monthly alimony
obligation to wife;
Court of Criminal Appeals reverses aggravated burglary conviction when
although victim did not give his express consent to allow defendant to enter
his residence, fact that he allowed defendant to enter is evidence of his
apparent consent; and

 Court of Criminal Appeals rules trial court erred in denying defendants

motion to suppress results of his blood draw when record did not show
sufficient exigency to justify nonconsensual warrantless search and seizure
of defendants blood.

SUPREME COURT
CRIMINAL PROCEDURE: In case in which defendant was convicted of seven
counts of rape of child and two counts of aggravated sexual battery, defendants
confessions were admissible because they were not involuntary, and they were
sufficiently corroborated; in close case, although trial judge erred in allowing state
to present evidence related to defendants viewing of adult pornography during its
case-in-chief, error was harmless given fact that jury knew that defendant was
capable of lying, and trial court and prosecution counseled jury not to use
evidence as propensity evidence for sexual misconduct; it is unlikely that
erroneous testimony concerning defendants pornography use had substantial and
injurious impact on jurys decision-making process. State v. Clark, 11/10/14,
Nashville, Koch, unanimous, 33 pages.
http://www.tncourts.gov/sites/default/files/clarkfcopn.pdf

CRIMINAL PROCEDURE: Legitimate independent motivation test

fashioned for constitutional challenges to searches and seizures made by private
parties should not be used to determine admissibility of incriminating statements
elicited by private parties; statement made to confidante may still be inadmissible
if, after considering totality of circumstances, court determines that it was
involuntary; in case in which defendant was convicted of four counts of rape of
child and five counts of aggravated sexual battery, defendants recorded
incriminating statements made to his former live-in girlfriend and mother of
victim, were admissible because girlfriend did not overbear defendants will and
force him to confess; there was no violation of defendants constitutional right
against compelled self-incrimination because defendant merely misplaced his trust
in confidante to whom he voluntarily confessed. State v. Sanders, 11/10/14,
Nashville, Koch, unanimous, 21 pages.
http://www.tncourts.gov/sites/default/files/sandershfopn.pdf

COURT OF APPEALS
TORTS: In wrongful death action on behalf of resident who died in house fire
allegedly set by her ex-boyfriend, trial court properly granted Blount County
Fire Protection District summary judgment when fire chief testified that

standard of care would require that firefighters stay clear of scene of domestic
dispute, violence, or crime in progress until law enforcement secured scene;
trial court properly granted Blount County 911 Communication Center
summary judgment when it presented evidence that its written policy and
procedures did not require that all callers be kept on line or called back unless
dispatcher was requested to do so by responders, and when dispatchers failure
to do so was not cause in fact of decedents injury. Estate of Quinn v.
Henderson, 11/13/14, ES, Frierson, 16 pages.
http://www.tncourts.gov/sites/default/files/quinn_0.pdf

EMPLOYMENT: Substitute teacher (claimant) filed claim for unemployment

benefits, Department of Labor and Workforce Development (Department) utilized
partial unemployment regulation (Rule 0800-09-01-.11) to determine claimants
eligibility and awarded benefits, and Board of Education filed petition for review,
contending that teacher was not entitled to benefits because she was still employed
and because she had refused work assignments which she had been offered, part
total regulation was proper regulation to use in determining claimants eligibility;
in its findings of fact, Departments designee included some findings relative to
claimants employment as substitute teacher and her efforts to secure
unemployment benefits, but designee did not make findings that claimant met
eligibility conditions set forth in TCA 50-7-302(a)(4), specifically that claimant
was able to work, available for work, and making reasonable effort to secure
work; fact that claimant did not accept assignments which were offered is
pertinent to determination of her eligibility; judgment is vacated in part, and case
is remanded to trial court with instructions to remand case to Department to
consider statutory eligibility conditions. Metro Government of Nashville v.
Tennessee Department of Labor & Workforce Development, 11/13/14, MS,
Dinkins, 11 pages.
http://www.tncourts.gov/sites/default/files/metro_v.tdlw13-01551.opn_.pdf

FAMILY LAW: In case in which wife was awarded alimony in futuro of $1,500
per month at time of parties divorce in 2004, trial court did not abuse discretion
in terminating husbands alimony obligation in 1/14 based on substantial and
material change in circumstance; because husbands stroke and resulting inability
to work was unanticipated at time of parties divorce and given fact that there was
no evidence indicating that husbands stoke was caused by his alcohol
consumption, husbands stroke and resulting inability to work were material
change in circumstances warranting termination of husbands alimony obligation;
trial court did not abuse discretion in failing to require husband to liquidate his
assets in order to continue to meet his monthly alimony obligation to wife. Willet
v. Taeubel, 11/10/14, WS at Knoxville, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/taeubellopn.pdf

CIVIL PROCEDURE: In case in which plaintiffs were involved in car accident

in Tennessee while driving vehicle they borrowed from North Carolina residents,
although borrowed vehicle was owned by North Carolina residents, car owners
had elected insurance policy with Missouri choice of law provision because their
daughter principally used car in Missouri where she attended college, and issue on
appeal was whether Missouri law, which does not require underinsured motorist
coverage, or North Carolina law, which provides that driver with liability
insurance policy with less than minimum limits as required by North Carolina law
is considered uninsured motorist, controls, trial court did not err in finding that
Missouri choice of law provision was valid and enforceable because choice of law
provision was not contrary to fundamental policy of North Carolina. Williams v.
Smith, 11/6/14, MS, Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/williamsdcorrection_opn.pdf

GOVERNMENT: In case in which Metropolitan Nashville and Davidson County

Council (Metro Council) amended Metro Code to add gender identity and
sexual orientation to class of persons protected by equal opportunity provisions
applicable to government contractors, General Assembly subsequently enacted
Equal Access to Intrastate Commerce Act (EAICA) amending Tennessee Human
Rights Act (THRA) to add that term sex refers only to designation of individual
persona as male or female as indicated on individuals birth certificate, and
plaintiffs filed suit alleging that EAICA violates equal protection guarantees of
both state and federal constitutions, trial court properly dismissed plaintiffs claims
for lack of standing when they failed to allege discrete, palpable, cognizable injury
in fact plaintiffs referenced no actual instance of discrimination as result of
enactment of EAICA, they have not been denied fundamental right, and their
allegations of immediate risk of discrimination are hypothetical and conjectural
and are insufficient to confer standing; EAICA does not apply to local education
agencies or Tennessee schools. Howe v. Haslam, 11/4/14, WS at Nashville,
Farmer, concurrences by Stafford & McBrayer, 35 pages.
http://www.tncourts.gov/sites/default/files/howelisaopn_0.pdf
http://www.tncourts.gov/sites/default/files/howelconstafford.pdf
http://www.tncourts.gov/sites/default/files/howelisaseparateopinion_2.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was not sufficient to convict defendant of
aggravated burglary and felony murder in perpetration of or attempted
perpetration of burglary when evidence established that defendant entered
victims residence with consent of victim; although victim did not give his express
consent to allow defendant to enter his residence, fact that he allowed defendant to
enter is evidence of his apparent consent; even if victim could have formed false

impression that defendant intended to enter his residence for purpose of

purchasing marijuana, statute does not allow for conviction based upon
defendants failure to correct victims false impression of his intention;
defendants remaining convictions felony murder in perpetration of or attempted
perpetration of robbery and theft, facilitation of conspiracy to commit especially
aggravated robbery, and attempted especially aggravated robbery are affirmed.
State v. Alajemba, 11/12/14, Nashville, Witt, 53 pages.
http://www.tncourts.gov/sites/default/files/alajembajonathanopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was charged with

several criminal offenses, including DUI, after she was involved in fatal car
accident, while defendant was in hospital being treated for her injuries, blood
sample was taken for law enforcement purposes, defendant filed motion to
suppress results of blood analysis, and trial court granted defendants motion,
although defendant did not give actual consent to contested blood draw, evidence
preponderates against trial courts conclusion that police officer lacked probable
cause to believe that defendant had consumed alcohol even though defendant
was able to successfully perform field sobriety tests, she committed significant
moving violation (driving wrong way on divided highway), she had odor of
alcohol about her person, and she admitted to drinking alcohol; because officer
had probable cause to believe that defendant was driving after having consumed
alcohol and because defendant did not refuse blood draw, defendants blood test
results were not subject to suppression by trial court; application of Tennessee
implied consent statute has not been held to be invalid or unconstitutional when
individual, suspected of DUI based upon probable cause, did not refuse to submit
to chemical test; present case presents appropriate opportunity for Tennessee
Supreme Court to adopt United States v. Leon-type good faith exception to
exclusionary rule that is otherwise applicable under Tenn. Const. Art. I, Sec. 7.
State v. Reynolds, 11/12/14, Knoxville, Easter, concurrence by Witt, 24 pages.
http://www.tncourts.gov/sites/default/files/reynoldscorrinopn2.pdf
http://www.tncourts.gov/sites/default/files/reynoldscorrinkathleencon.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to second

offense DUI per se, trial court erred in denying defendants motion to suppress
results of his blood draw when record did not show sufficient exigency to justify
nonconsensual warrantless search and seizure of defendants blood; although
officers acted pursuant to approved police policy, law enforcement officers lack
of knowledge of procedures related to obtaining warrant does not create such
exigency that needs of law enforcement [are] so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment; state failed to
present sufficient evidence showing that obtaining search warrant on night of
traffic stop would have significantly delayed taking of defendants blood; implied

consent statute does not unconstitutionally dispense with warrant requirement.

State v. Gardner, 11/12/14, Knoxville, Montgomery, 12 pages.
https://www.tba.org/sites/default/files/gardnerj_111314.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of

misdemeanor assault, although trial judge erred by instructing jury that
misdemeanor assault is lesser included offense of Class E felony abuse of adult,
error was harmless; because jury implicitly rejected assertion that defendant acted
intentionally or knowingly when it acquitted him of charge of abuse of adult,
reckless assault remained as only lesser included offense of which jury could have
convicted defendant, and hence, trial judges error in instructing jury that
defendant acted intentionally was harmless error because it did not contribute to
verdict obtained. State v. Morris, 11/12/14, Nashville, Williams, 10 pages.
http://www.tncourts.gov/sites/default/files/morrisdraft.pdf

SIXTH CIRCUIT COURT OF APPEALS

EMPLOYMENT: District court properly granted defendant, health services
company, summary judgment in suit by plaintiff, former sales specialist, who
alleged claims of retaliatory discharge under Tennessee Public Protection Act
(TPPA) and Tennessee common law when plaintiff pointed to no facts suggesting
that his alleged refusal to participate in illegal activities was even considered by
defendant in making its decision to terminate him; even if plaintiff made out
prima facie case of retaliation under TPPA or common law, defendant had
legitimate, non-retaliatory reason for terminating him several complaints raised
by defendants customers and employees regarding plaintiffs job performance
and plaintiff cannot point to any evidence suggesting that defendants explanation
for his discharge was pretextual. Hugo v. Millennium Laboratories Inc.,
10/31/14, Boggs, 9 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0825n-06.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