TAM-BYTES

April 20, 2015

Vol. 18, No. 16
2015 TAM CLE CALENDAR

Webinars
Tennessee Appellate Practice Basics: Top 10 Ways to Lose Your
Appeal, 60-minute webinar presented by Elizabeth Sitgreaves, with
Dodson, Parker, Behm & Capparella in Nashville, on Thursday, May 7, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Enhancing Your Trial Skills: Applying Rules of Discovery and
Evidence, 60-minute webinar presented by Stephen Gillman, with
Pryor, Priest, Harber, Floyd & Coffey in Knoxville, on Wednesday, May
13, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
E-Discovery in Tennessee: Where We Are and Where We Are
Going, 60-minute webinar presented by Russell Taber, with Riley,
Warnock & Jacobson in Nashville, on Wednesday, May 27, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Follow the Money: Finding Applicable Insurance and Collectible
Assets in Auto Injury Cases in Tennessee, 60-minute webinar
presented by Burke Keaty, with the Law Offices of John Day in
Brentwood, on Wednesday, May 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Probate Litigation in Tennessee: Hot Topics and Recent
Developments, 60-minute webinar presented by Rebecca Blair, with
The Blair Law Firm in Brentwood, on Thursday, May 28, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Change of Custody in Tennessee: Parental Relocation and Other

Post-Divorce Issues, 60-minute audio conference presented by Kevin
Shepherd, Maryville attorney, on Thursday, June 4, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee

Attorneys
WHEN: Friday, May 8
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL
and 1 hour of DUAL credit
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day; Daniel Clayton, Kinnard, Clayton &
Beveridge; C. J. Gideon, Gideon, Cooper & Essary; Ben Harrison,
Cornelius & Collins; Marty Phillips, Rainey, Kizer, Reviere & Bell; and
Tom Pinckney, Of Counsel, Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate
of good faith requirements; practical considerations for handling a health
care liability claim on behalf of an injured patient; techniques for
deposing an expert; physician credentialing and other hospital liability
issues; trial tips and tactics from the defense perspective; deposition
strategies; the use of technology in a health care liability case; review of
recent health care liability appellate court cases; a panel discussion of hot
topics in health care liability actions; and ethical issues in handling
medical records, including HIPAA compliance.

Tennessee Business Law Conference

Davidson County Chancellor Ellen Hobbs Lyle, whose court
will be hearing business law cases, will be at the conference
to explain how the new business court will work!! Shell be
available for questions!!

WHEN: Friday, May 15

WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL
and 1 hour of DUAL credit
FACULTY: Alexander J. Davie, Riggs Davie, Nashville; Keith C.
Dennen, Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton,
Franklin; J. Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga;
Mark Ison, Sherrard & Roe, Nashville; Thomas K. Potter, III, Burr &
Forman, Nashville; Andrew J. Pulliam, Wyatt, Tarrant & Combs,
Nashville; and Richard Spore, Bass, Berry & Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to
consider, parent/subsidiary liability, reverse piercing, and effect of
Hobby Lobby; liability and fiduciary duties of corporate officers and
directors to the corporation and the shareholders; a step-by-step guide to a
business divorce from fact-finding to the end game; recent changes
to the Tennessee Nonprofit Corporation Act optional changes to
governing documents; key considerations in selecting a business entity
for example, using series LLCs and new hybrid alternatives; drafting LLC
operating agreements key provisions to include; forming a professional
service business including management services and friendly PC
arrangements involving nonprofessionals; and ethics for attorneys in
business disputes including understanding the scope of your
representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Workers Comp Appeals Board affirms ruling that employee rebutted
statutory presumption that drug was proximate cause of injury when
employee, who tested positive for methamphetamines on first drug
test using urine sample, passed second drug test using hair sample,
employee testified that he had not used illegal drugs in many years,
and there was no evidence that illegal drug use caused or contributed
to accident;
Court of Appeals reverses trial courts denial of husbands petition to
terminate alimony based on his retirement from his career as
orthopedic surgeon following health problems; and

Court of Criminal Appeals says fact that RV was parked in area

immediately beside home to be searched and attached by electrical
cord to home created sufficient nexus to validate search under
warrant.
WORKERS COMP PANEL
CIVIL PROCEDURE: When employee injured his shoulder at work on
12/29/04, employee settled his workers comp case for 18% permanent
partial disability to the body as a whole with open future medical expenses
for relief pursuant to [TCA] 50-6-204, employee decided on 6/5/08 to have
surgery on his shoulder, employer denied employees request on 6/27/08,
and employee filed suit on 3/20/13 requesting that employer be required to
provide him surgery he requested on 6/5/08, trial court correctly held that
employees action, brought almost five years after employers written
decision to deny benefits, was barred by statute of limitation; employee
contended that one-year statute of limitation in TCA 50-6-224(a)(3) did not
apply, but compensation, as used in TCA 50-6-203 may consist of
furnishing of medical services through physicians or others. Dew v. ReesMemphis Inc., 4/13/15, Jackson, Parish, 8 pages.
http://www.tncourts.gov/sites/default/files/dewdopn.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee alleged he suffered
back injury on 9/19/14 caused by lifting piece of heavy equipment while
working as HVAC service technician for employer with drug-free workplace
program, employees urine tested positive for methamphetamines on 9/23/14,
thus triggering rebuttable presumption in TCA 50-6-110(c)(1) that drug was
proximate cause of injury, employer denied workers comp claim based on
illegal drug use defense, and employee, believing that results of drug screen
were incorrect, took second drug test on 10/30/14, second test, which used
hair sample, was negative, trial court did not err in finding that employee had
rebutted statutory presumption by clear and convincing evidence when only
evidence employer presented in support of its illegal drug use defense was
positive drug screen on 9/23/14, employee testified that he had not used
illegal drugs in many years, and there was no evidence that illegal drug use
caused or contributed to accident. Ellis v. A Air-One Services, 4/16/15,
Davidson, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1081&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1070&context=utk_workerscomp

COURT OF APPEALS
COMMERCIAL LAW: When plaintiff purchased commercial building at
auction, plaintiff determined that building was smaller than represented in
auction advertisements, and plaintiff filed suit asserting claim against
auction company for negligently misrepresenting square footage of
building, trial court properly granted defendant summary judgment when
terms of sales agreement that plaintiff signed prior to making bid and
announcement that immediately preceded auction clearly and unequivocally
stated that property was being sold as is, and when terms of sale and
announcement both established that plaintiff shall rely entirely on his
own inspection and information. Pritchett v. Comas Montgomery Realty &
Auction Co., 4/15/15, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/pritchettt.opn_.pdf

FAMILY LAW: In case in which husband filed petition to terminate his

alimony obligation to wife at time of divorce in 6/07, husband was
ordered to pay wife alimony in futuro of $10,000 per month based on
his retirement from his career as orthopedic surgeon, evidence
preponderated against trial courts denial of husbands petition based on
courts finding that there had been no substantial or material change in
circumstances; husbands retirement in 12/12 at age 64 was objectively
reasonable and constitutes substantial and material change in
circumstances husband spent over three decades practicing orthopedic
surgery and had begun experiencing health problems, including numbness
in his hands; given fact that husbands ability to pay alimony has been
reduced by his retirement and fact that wife is no longer economically
disadvantaged relative to husband net worth of each party is relatively
equal at $3.7 million each husbands alimony obligation to wife is
terminated. Odom v. Odom, 4/14/15, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/odomacopn1.pdf

FAMILY LAW: In case in which parties were married for 15 years, at

time of marriage, husband owned interest in his familys motorcycle
dealership, husband inherited remaining interests in that dealership from
his parents during marriage, during divorce hearing, trial court found that
dealership was separately owned asset that became marital property by
reason of transmutation, and trial court rendered what is considered to be
equitable division of parties marital assets, because trial court erred in
both its classification and valuation of motorcycle dealership, overall

distribution of parties marital assets was erroneous; trial court erred in its
valuation of business-related real property without additional
explanation it cannot be determined whether respective appraisal included
garage located on property in question, as husband asserted, or whether
garage value should be added, as wife argued; trial courts overall
valuation of business and business-related real property is vacated, and
case is remanded to trial court for further proceedings. Griffith v. Griffith,
4/14/15, ES, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/griffithopn.pdf

GOVERNMENT: Inspectors for Transportation and Licensing

Commission (TLC) were authorized to issue citations to plaintiffs,
owners/operators of horse-drawn carriage business in Nashville; pursuant
to TCA 7-3-501, employee of the metropolitan government may be
authorized to enforce ordinances through issuance of citation or a civil
warrant; while accoutrements utilized by inspectors, i.e., blue lights,
firearms, and badges, were not authorized for TLC inspectors, their use
does not negate authority given by Metropolitan Nashville Code to TLC
inspectors to issue citations. Smith v. Metropolitan Government of
Nashville, 4/13/15, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/smithjopn_1_1.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted
of possession of not less than one-half ounce or more than 10 pounds of
marijuana with intention to sell and possession of drug paraphernalia, trial
judge properly denied defendants motion to suppress evidence discovered
during search of recreational vehicle (RV) belonging to defendant;
although RV was not parked on premises listed in warrant to be searched
search warrant, which was targeted at recovering security equipment
allegedly stolen by defendants grandson, was issued for search of house
on defendants property and did not extend to RV, which was owned by
defendant and parked on neighboring lot fact that it was parked in area
immediately beside home and attached by electrical cord to home creates
sufficient nexus to validate search under warrant; generally, search
conducted pursuant to warrant for search of premises but encompassing
vehicle not particularly described in warrant may be justified when
vehicle is (1) located on premises described and (2) within possession or
control of persons named in warrant. State v. Thompson, 4/15/15,
Nashville, Williams, 11 pages.
http://www.tncourts.gov/sites/default/files/thompson.pdf

SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: In consolidated appeal in which plaintiff argued
that defendants utilized default-judgment-only litigation strategy to
convert potentially bad debts into more robust, collectable judgments
plaintiffs alleged that if accused debtor appeared in court to contest debt,
defendant holders of debt then just dismissed action as matter of course, but
when accused debtor failed to appear, resulting default judgment made it
easier for debt-holders to pursue collection violated federal Fair Debt
Collection Practices Act, district court properly granted defendants
summary judgment; district court properly applied Tennessee law in
holding that requirement in Tennessee Collection Service Act that
collection services obtain license from Tennessee Collection Service
Board before engaging in any collection activities applies only to those
persons who actually involve themselves in, or take part in, act of collecting
and not to investors who rely on others to collect on debts they hold.
(During appeal, Tennessee legislature revisited Tennessee Collection
Service Act and passed legislation (2014 PC 996) providing that state law
does not apply to any person that holds or acquires accounts, bills or other
forms of indebtedness and only engages in collection activity through use of
licensed collection agency or attorney.) Bradford v. LVNV Funding LLC,
4/13/15, Merritt, 4 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0264n-06.pdf

CRIMINAL PROCEDURE: In case in which defendant was indicted on

three related charges involving child pornography, defendant invoked his
right to self-representation and waived his right to attorney, magistrate
appointed standby counsel but ruled that standby counsel could only
answer defendants questions and file pleadings that defendant drafted, in
light of defendants largely incomprehensible pleadings and his report of
disturbances in his mental health, district court ordered defendant to
undergo psychiatric examination, based on resulting report finding
defendant competent, magistrate found defendant competent to stand trial,
and defendant subsequently represented himself and was convicted of all
three charges, defendant was deprived of counsel during his competency
hearing; because there was no evidence that counsel represented
defendant at competency hearing or participated in any way in
determination of defendants competency, defendant was deprived of
counsel during critical stage of proceeding; defendants convictions and
sentences are vacated, and case is remanded for new competency hearing

and, if defendant is found competent, new trial. United States v. Martin,

4/15/15, Daughtrey, dissent by Moore, 11 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0284n-06.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, assistant manager,
was outside on smoke break, she was approached by daughter of former coworker who accused her of talking about daughters husband, woman told
employee she was going to police about employees husband, employee
told woman to go ahead, cause [sic] you, I mean, we dont do anything
wrong, and woman, in response, ran toward employee and pushed her
down, causing employee to fall backward and injure her hands and back,
and employers workers comp carrier denied claim, employees request for
medical benefits is denied; employee failed to prove that her injury arose
primarily out of her employment when she was injured by third party and
assault occurred because of personal issues between two. Nelson v. GPM
Industries, 1/12/15, Addington, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1043&context=utk_workerscomp

WORKERS COMPENSATION: When employee, server at restaurant

operated by employer, slipped on some water that had pooled on floor in
area around dishwashing station, employee was transported to hospital after
she regained consciousness, CT-scan of her head and neck revealed no
acute fractures, she received stiches and was released next day, employee
returned to work approximately two weeks after her release from hospital,
but employer closed restaurant shortly after employee returned to work,
employer, who did not appear at expedited hearing, is ordered to cover
costs of employees treatment; employee is entitled to continued care for
her headaches and any other injuries related to fall, and employer is ordered
to provide employee panel of physicians and to pay cost of all reasonable
and necessary care provided by authorized treating physician; employee is
not entitled to recover temporary disability benefits when she provided no
opinion from physician stating that she could not resume working after her
injury and when medical records provided by employee show that hospital
released her from care day after her injury without imposing any restrictions
on her activities. Little v. Sweet Ts, 1/13/15, Baker, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1080&context=utk_workerscomp

ATTORNEY GENERAL OPINION

CONSTITUTIONAL LAW: Proposed bill which would make Holy
Bible official state book of Tennessee is unconstitutional. Attorney
General Opinion 15-34, 4/13/15, 4 pages.
http://www.tn.gov/attorneygeneral/op/2015/op15-34.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