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TAM-BYTES

January 4, 2016
Vol. 19, No. 1
TAM Webinars
“Tennessee Family Law Cases that Could Impact Your Practice,” 90minute webinar presented by Brent Lankford, with Stites & Harbison in
Nashville, on Tuesday, February 23, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
“Judgment Collection in Tennessee -- Locating Assets and Collection
Methods that Work,” 60-minute audio conference presented by Griffin
Dunham, with Emerge Law in Nashville, on Wednesday, February 24, at
2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Handling Uninsured and Underinsured Motorist Claims in
Tennessee,” 60-minute webinar presented by Dan Coughlin, with
Massengill, Caldwell & Coughlin in Bristol, on Thursday, February 25, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Using Mental Health Records in Tennessee Custody Cases: The
Culbertson Case,” 60-minute webinar presented by Amy Amundsen, with
Rice, Amundsen & Caperton in Memphis, on Thursday, February 25, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Update on Living Wills, Advance Directives, and Powers of Attorney
for Health Care in Tennessee,” 60-minute webinar presented by Terry
Cox, Cox & Wortman in Collierville, on Wednesday, March 9, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

and Mathew Zenner. McCune.5 hours of CLE. a panel discussion of “hot topics” in healthcare liability actions. Williams.5 hours of CLE. Parsons. Gullett Sanford Robinson & Martin PLLC. Chancellor Ellen Hobbs Lyle. including 6. Nashville. Ben Harrison. Chris Tardio. Berry & Sims. including 6. defenses. new summary judgment procedure. Davidson County Chancery Court. Tennessee Business Law Conference *Now in its 2nd year!* WHEN: Friday. Nashville. May 13 WHERE: Nashville – Nashville School of Law CLE: Earn up to 7. Cornelius & Collins. that may be raised to defeat a plaintiff’s healthcare liability claim. and Bryan K. Gideon. and ethical issues that arise when dealing with evidence and experts. Nashville attorney. David B. Brandon Bass. May 20 WHERE: Nashville – Nashville School of Law CLE: Earn up to 7. Cooper & Essary. using technology to excel as an advocate in a healthcare liability case. how to “turn the tables” on a plaintiff’s expert. Memphis.. Kevin Levine. Philip N. Marty Phillips. Brentwood. review of recent healthcare liability appellate court decisions. III. Brentwood HIGHLIGHTS: Recent developments in pre-suit notice and certificate of good faith requirements. Kizer. L. Neal & Harwell. .On-Site Events Medical Malpractice Conference for Tennessee Attorneys *Now in its 9th year!* WHEN: Friday. Ralph Levy. Nashville. Harris Shelton Hanover Walsh PLLC. PLC. Nashville. Dickinson Wright PLLC. Zenner and Happell. Kevin Levine. Bass. PLLC. Law Offices of John Day. Elbert. L.5 hours of GENERAL and 1 hour of DUAL credit FACULTY: A. such as patient negligence. Jr. Memphis.. Rainey. Jr. Richard R. Reviere & Bell. Neal Graham. Nashville. Nashville. deposition strategies to help you win at trial. Spore.5 hours of GENERAL and 1 hour of DUAL credit FACULTY: Davidson County Circuit Judge Tom Brothers. trial tips and tactics from both a plaintiff’s and defense perspective. Jackson.

creative practices for handling business disputes to avoid litigation. until child is three years old.  Court of Appeals affirms trial court’s restriction of father’s parenting time with his 13-month-old son to 48 hours per month.mleesmith.com.including adequacy of fees and charges. top 10 negotiation strategies for obtaining a settlement in a business dispute. with no overnight visitation. and  Court of Workers’ Compensation Claims finds rational connection between employee’s injury and condition of his work in case in which NES employee. IN THIS WEEK’S TAM-Bytes  In imposing discipline on attorney. and Tennessee Rules of Juvenile Procedure. whose job required him to drive around city to make repairs or respond to service calls as assigned. state did not have duty to preserve blood sample taken from defendant when defendant’s blood sample was destroyed in accordance with established TBI policy and well beyond 60-day requirement. For more information or to register for any of our CLE events.  Court of Appeals rules trial court erred in ordering defendant to pay plaintiff attorney fees and expenses incurred in prosecuting her petition to set aside defendant’s quitclaim deed as fraudulent conveyance as TCA 29-12-101 contains no provision for recovery of attorney fees. even if third-party website operators are primarily responsible for representations.  Court of Appeals. what federal tax issues arise when operating a limited liability company. Tennessee Rules of Criminal Procedure.  Supreme Court adopts amendments to Tennessee Rules of Civil Procedure. Supreme Court says attorney is ethically accountable for prohibited representations on his or her website. Tennessee Rules of Appellate Procedure. says TCA 448-413 retains and codifies common law requirement that claimant “establish that the dog owner knew or should have known of dog’s propensities” when dog causing injuries was on its owner’s property. .  Court of Criminal Appeals. key issues in drafting an acquisition agreement. call us at (800) 274-6774 or visit www. in vehicular homicide case. mistakes to avoid in drafting LLC operating agreements. in dog bite case of first impression. what every attorney needs to know when litigating a business dispute in Tennessee. and ethics for attorneys in business disputes -. took morning break at Chik-Fil-A and slipped on ice and fell while walking across parking lot.HIGHLIGHTS: Survey of business law issues that have arisen in the Tennessee Business Court Pilot Project.

Nashville. Revised rules are re-ordered and divided into four sections: general. upon filing of complaint. even if third-party website operators are primarily responsible for representations.pdf. issue summons “promptly. clerk of court must.gov/sites/default/files/regulic.pdf APPEAL & ERROR: Appellate court may dismiss. In re Amendments to Tennessee Rules of Civil Procedure. with suspension to be served on probation. and foster care. 11 pages.04. 12/29/15. based on three complaints of misconduct.” Revised procedure is set forth for extending unsatisfied judgment under TRCP 69.pdf CRIMINAL PROCEDURE: Motion to correct illegal sentence under TRAP 36.tncourts. Nashville.1 must be filed before defendant’s sentence expires. 18 pages. Nashville. delinquent and unruly.pdf CRIMINAL PROCEDURE: Tennessee Rules of Juvenile Procedure are replaced in their entirety. Nashville. http://www.tncourts. These and other amendments to Tennessee Rules of Civil Procedure take effect on 7/1/16 if approved by General Assembly.pdf. Lee. http://www. appeal if appellant fails to file transcript or statement of evidence within time specified. Amendments take effect on 7/1/16 if approved by General . for 11 months and 29 days. 12/28/15. These and other amendments to Tennessee Rules of Criminal Procedure take effect on 7/1/16 if approved by General Assembly. 4 pages. 4-0.pdf CIVIL PROCEDURE: Under amended TRCP 4.opn__0. Court must deny motion to correct illegal sentence if defendant benefited from bargained-for illegal sentence.tncourts. Reguli.01. trial court erred in shortening attorney’s term of suspension and probation but properly modified sanction by requiring attorney to pay restitution to client with regard to unearned fee attorney had not refunded to client.gov/sites/default/files/2016_rules_package_final_public-comment_order_8-27-15.gov/sites/default/files/2016_rules_package_final_public-comment_order_8-27-15. 12/29/15.tncourts.pdf.SUPREME COURT PROFESSION OF LAW: In case in which hearing panel of Board of Professional Responsibility suspended attorney. 22 pages. In re Amendment to Tennessee Rules of Appellate Procedure. attorney is ethically accountable for prohibited representations on his or her website. In re Amendments to Tennessee Rules of Criminal Procedure. http://www. on its own initiative. 12/29/15. This amendment to Tennessee Rules of Appellate Procedure takes effect on 7/1/16 if approved by General Assembly. dependent and neglected.gov/sites/default/files/2016_rules_package_final_public-comment_order_8-27-15. Board of Professional Responsibility v. http://www.

Nashville.gov/sites/default/files/2016_rules_package_final_public-comment_order_8-27-15. JDAK LLC. Hovatter v. and/or exposure to vibration. within six months of returning to work. Lay v. This amendment to the Tennessee Rules of Juvenile Procedure takes effect on 7/1/16 if approved by General Assembly. 12/30/15.tncourts. http://www. In re Amendments to Tennessee Rules of Juvenile Procedure (Rule 204). 12/29/15. Nashville. Nashville. forceful lifting.Assembly.gov/sites/default/files/laykwcopn2jo. gripping.pdf WORKERS’ COMPENSATION: When employee injured his right elbow in 4/05 while working for employer. trial court found that these periods were due to employee’s work ethic and desire to work.pdf CRIMINAL PROCEDURE: Under TRJP 204. In re Amendments to Tennessee Rules of Juvenile Procedure. Novak was unwilling to opine employee’s injury arose primarily from her employment given her history ostensibly lacking “heavy.gov/sites/default/files/hovatter-jdak_opn. children appearing in juvenile court may be restrained under certain circumstances. Bennett. 92 pages. employee began experiencing pain in his right shoulder and numbness in his hand. 12/29/15. although employer argued that trial court erred in imposing excessive award because employee maintained ability to work in numerous capacities and was not vocationally impaired.tncourts. http://www.” and even accepting Novak’s position that such activity is required to produce carpal tunnel syndrome.pdf.pdf. 9 pages. Nashville. http://www.tncourts. http://www. 8 pages. 3 pages.gov/sites/default/files/2016_rules_package_final_public-comment_order_8-27-15. Ash. evidence did not preponderate against trial court’s award of 20% permanent disability when evaluating physician assigned 2% impairment to body as whole for right shoulder injury and 3% impairment to body as whole for employee’s left shoulder injury.pdf WORKERS’ COMPENSATION: Evidence did not preponderate against trial court’s finding that employee suffered compensable injury to both shoulders when although employer made much of fact that employee went several months without seeking treatment. employee received treatment over next two years and .pdf WORKERS’ COMP PANEL WORKERS’ COMPENSATION: Employee carried her burden of rebutting authorized treating physician’s (Novak’s) causation opinion by preponderance of evidence when evaluating physician (Gaw) opined that employee’s injury primarily stemmed from repetitive use of her hands.tncourts.. Bridgestone Americas Inc. 12/29/15. evidence demonstrated that employee was indeed exposed to vibration for many years.

Gaut. while at defendant’s residence to do maintenance on defendant’s satellite dish. http://www.pdf DAMAGES: When plaintiff homeowner filed suit alleging defendant’s intentional misrepresentation as to contractor licensure. for cases where dog caused injury on its owner’s property. and hence.gov/sites/default/files/johsnonl_opn. trial court’s award of punitive damages was in accordance with law when trial court found that defendant’s actions were intentional.tncourts.tncourts. TCA 44-8-413. Clement. Great Dane. MS.pdf . construction skills. New Wave LLC.” Johnson v.eventually was assigned 7% permanent disability rating. and warranted award of $36. creates significant distinction between injuries caused by dogs that are “running at large” and that are “in public place or lawfully in or on the private property of another. 12/30/15. negated element of knowledge or notice of dog’s dangerous propensity. http://www. Braden v. Nashville. defendant. and violation of TCA 62-6-136 for misrepresentation of licensure in connection with $27. was bitten by defendant’s dog.gov/sites/default/files/moore_v_gaut. ES. and code compliance..” and dogs that cause injury while on their owner’s property. which was enacted in 2007. fraudulent.gov/sites/default/files/bradenj. M&W Transportation Co. 6 pages. trial court did not err in applying “direct and natural consequences rule” and properly assigned liability for those conditions to insurance company that provided coverage through 9/30/06. Susano. and each insurer disclaimed liability for eventual disability.opnjo_.pdf COURT OF APPEALS TORTS: Trial court properly granted defendant summary judgment in case by plaintiff who. breach of implied duty of good faith and fair dealing.200 in punitive damages in effort to punish defendant “for misrepresenting that he was a licensed contractor and to deter others from committing this wrong. statute clearly retains and codifies common law requirement that claimant “establish that the dog’s owner knew or should have known of dog’s dangerous propensities”.tncourts. 10 pages. by testifying in his affidavit that his dog never bit or attacked anyone before plaintiff. Bivins. 12/30/15. three different insurance companies covered employer during time of employee’s treatment. evidence did not preponderate against trial court’s finding of causal relationship between original work injury and elbow and shoulder conditions. Moore v. http://www. who was on other side of defendant’s fenced-in backyard. 12/30/15. 7 pages.500 contractor agreement for home improvements.

tncourts. WS at Nashville. and has no formal education beyond high school. and leaving child unattended in vehicle. until child is three years old.pdf FAMILY LAW: In divorce case. MS. 13 pages. 12 pages. 12/30/15. trial court erred in ordering Lowry to pay Anderson $8. http://www. and father pulled on child’s testicles while changing child’s diaper – provide sufficient proof to support finding that this conduct is directly adverse to best interests of child. evidence did not preponderate against trial court’s restriction of father’s parenting time with his 13-month-old son to 48 hours per month.gov/sites/default/files/thompsonccorr_opn. and there was no evidence that wife’s education or work experience qualifies her for jobs that will pay close to hourly rate that husband earns or that will enable her to have standard of living even close to one parties had during marriage or that husband is able to maintain post-divorce. trial court did not err in awarding Anderson treble damages for timber that had been removed by Lowry.tncourts.059 as alimony in solido for just over half of her attorney fees when wife’s cash assets are primarily comprised of funds trial court awarded her .400 per month as alimony in futuro when husband earns $23. when father’s inappropriate statements and conduct concerning child’s genitals – father made inappropriate comments about child’s genitalia while mother was giving child bath. http://www. which determines proper procedure to rectify fraudulent conveyance. worked in manufacturing plants as factory worker but is unable to stand for long periods due to pain she experiences in her ankle. evidence did not preponderate against trial court’s finding that Lowry knowingly and intentionally cut timber from disputed property belonging to Anderson. 12/30/15.pdf FAMILY LAW: In case in which parties were divorced after 24 years of marriage. going on trip with friends to Colorado in lieu of exercising his limited amount of parenting time with child. contains no provision for recovery of attorney fees. Lowry. Thompson v. evidence did not preponderate against trial court’s award to wife of $1. trial court did not abuse discretion by awarding wife $9. wife is 46 years old. Clement. and as such. Armstrong.PROPERTY: In case that originated from boundary line dispute and action to quiet title between two adjacent landowners (Anderson and Lowry). with no overnight visitation. Thompson. evidence also preponderated in favor of finding of neglect and substantial nonperformance of father’s parenting responsibilities based on father’s voluntary decisions to go to family farm instead of spending time with child. more than double that of wife.200 in attorney fees and expenses incurred in prosecuting her petition to set aside Lowry’s quitclaim deed as fraudulent conveyance when TCA 29-12-101.59 per hour.opn_.gov/sites/default/files/andersonemma. Anderson v.

tncourts. Tennessee Department of Safety & Homeland Security. Gibson. husband filed petition to modify his child support and alimony obligations in 2013. after learning of order of forfeiture. requirement that petitions for judicial review of forfeiture proceedings be filed in Davidson County does not violate due process given fact that statute allows for sufficient time for those living outside of Davidson County to file timely petition for judicial review. although husband’s postretirement income was factor to consider in alimony and child support modification. McBrayer. Long v. trial court’s rulings with regard to calculation of husband’s disposable military retired pay is vacated. when no petition was filed asserting claim to vehicle. Bennett. MS. owner of vehicle filed petition for judicial review. 6 pages. Kolasinski v. was reasonable under circumstances. http://www. 12/23/15. http://www. 7 pages. directed to owner’s home address.pdf GOVERNMENT: In case in which police seized vehicle and commenced forfeiture proceedings.tncourts. order of forfeiture was entered. 12/30/15. trial court created claim where none existed.julie_. 11 pages. Chumley v.pdf FAMILY LAW: In case in which parties divorced in 2011. trial court’s judgment with respect to wife’s 30% share of husband’s retired military income was outside scope of requested relief.gov/sites/default/files/longmelindakathleenopn. trial court properly dismissed petition for lack of subject matter jurisdiction. and trial court concluded that husband’s retirement from United States Army was material change of circumstances which required modification of husband’s child support and alimony obligations – trial court reduced husband’s child support obligation and ordered husband to pay 30% of his retirement disability pay to wife – because neither party raised issue regarding wife’s separate property share of husband’s military retirement. notices of forfeiture proceedings were mailed to driver and owner of vehicle. Chumley. but postal service returned notices undelivered. 12/29/15. and husband has ability to pay amount awarded.opn_. Long. MS. MS.gov/sites/default/files/chumley.tncourts.opn_.gov/sites/default/files/kolasinski. http://www. evidence did not preponderate against trial court’s finding that officer’s stop of defendant’s vehicle was supported by probable cause when officer testified that he observed defendant turning slowly and stopping short of stop sign and noticed defendant’s vehicle drift between middle and left sides of roadway before . but because petition was filed 61 days after entry of order of forfeiture. notice sent by certified mail.pdf COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In DUI case.for her share of equity in marital property.

. Minor v. Sun Products Corp.e. which was traffic violation. 6 pages. Headla. and defendant was clearly aware. long before formal charges were returned against her. i. decided to take morning break at Chik-Fil-A and slipped on ice and fell while walking across parking lot.edu/cgi/viewcontent. Montgomery. “primarily” requirement is new to Tennessee Workers’ Compensation Law. http://www.gov/sites/default/files/headlathomasgeorgeopn. 13 pages. Tipps. State v.cgi?article=1171&context=utk_workerscomp . 2005).cgi?article=1168&context=utk_workerscomp WORKERS’ COMPENSATION: In case in which employee. Jackson. that she could have blood sample tested.. Smith v. 163 SW3d 673 (Tenn. but employee did not establish entitlement to temporary disability benefits when there was no medical opinion that employee’s carpal tunnel injury disabled him from working.edu/cgi/viewcontent.tncourts. Nashville Electric Service. Knoxville.tncourts. whether there is causal connection between employee’s injury and conditions under which he or she was required to work. process operator who uses rubber mallets and other tools to remove spilled material from floor and to dislodge soap powder from sides of tanks. and fibromyalgia. carpal tunnel syndrome. Safety National Casualty Corp. Knoxville. State v. Murfreesboro. state did not have duty to preserve blood sample taken from defendant given fact that TBI crime laboratory had storage space to keep only about three months’ worth of samples. 14 pages. http://trace.tennessee. Riddle. 8/24/15. lineman/working foreman for NES whose job required him to drive around city in order to make repairs or respond to service calls assigned by NES. 8/19/15. 12/29/15. 17 pages. defendant’s blood sample was destroyed in accordance with established TBI policy and well beyond 60-day requirement. Ogle. was diagnosed with elbow bursitis. http://www.pdf EVIDENCE: In vehicular homicide case.pdf COURT OF WORKERS’ COMPENSATION CLAIMS WORKERS’ COMPENSATION: There was rational connection between employee’s injury and condition of his work in case in which employee.gov/sites/default/files/riddlemargaretlaverneopn. TBI’s policy was to keep samples for minimum of 60 days.tennessee.drifting to far left side of roadway. employee came forward with sufficient evidence that he is likely to prevail at hearing on merits on issue regarding provision of panel. 12/30/15. Phillips. but it is reasonable to continue to apply test set out in Fritts v. http://trace.

tncourts.If you would like a copy of the full text of any of these opinions.gov . 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.