TAM-BYTES

June 20, 2016

Vol. 19, No. 25
TAM Webinars
Social Security Disability: How to Succeed at the ALJ Hearing,
60-minute webinar presented by Chris Gentry with The McMahan
Law Firm in Chattanooga, on Wednesday, July 13, at 10 a.m. (Central),
11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Child Support Guidelines: What Attorneys Need to
Know, 90-minute webinar presented by Barbara Broersma
Assistant Commissioner, Appeals & Hearings, with the Tennessee
Department of Human Services, on Wednesday, July 13, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
Child Custody in Tennessee: When May a Parent Relocate with
Children?, 60-minute audio conference presented by Kevin
Shepherd, Maryville attorney, on Tuesday, July 19, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Test for General Jurisdiction over Corporations: At Home Not
Doing Business, 60-minute webinar presented by Cannon Lawley
with Huie, Fernambucq & Stewart in Birmingham, on Wednesday, July
20, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
How to Handle Creditor Claims and Debts When Administering
a Tennessee Estate, 60-minute webinar presented by Grayson
Smith Cannon with Phillips & Ingrum in Gallatin, on Wednesday,
July 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Estate Planning in Tennessee: Digital Assets and Social Media

Accounts, 60-minute webinar presented by Donald Farinato with
Hodges, Doughty & Carson in Knoxville, on Thursday, July 21, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Injury Damages in Tennessee after West v. Shelby County
Healthcare, 60-minute webinar presented by Brandon Bass with Law
Offices of John Day in Brentwood, on Tuesday, July 26, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Contract Law for Tennessee Family Lawyers: Essential Principles
for Enforcement of Prenups and MDAs, 60-minute webinar presented
by Candi Henry with Dodson Parker Behm & Capparella in Nashville,
on Wednesday, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Taking Depositions to Win at Trial: Key Techniques for
Tennessee Attorneys, 60-minute webinar presented by Marty
Phillips with Rainey, Kizer, Reviere, & Bell in Jackson, on
Wednesday, August 10, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Event

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 23
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Judge Don R. Ash, Tennessee Senior Judge; Edward U. (Ned)
Babb, Butler, Vines and Babb, PLLC, Knoxville; Laura Baker, Law Offices
of John Day PC, Brentwood; Brandon Bass, Law Offices of John Day PC,
Brentwood; Daniel Clayton, Kinnard, Clayton & Beveridge, Nashville;
Chuck Mangelsdorf, MGC Insurance Defense, Nashville; J. Bryan
Moseley, Moseley & Moseley, Murfreesboro; and T. Kenan Smith, Hodges,
Doughty & Carson, PLLC, Knoxville

HIGHLIGHTS: How West v. Shelby County Healthcare impacts medical

damages; negotiating with insurance adjusters; proving medical bills in a
personal injury case; Medicare set-aside allocations, approvals, and
administration; truck accident litigation trial strategies for both the plaintiff
and the defense; best practices in uninsured motorist cases; voir dire -- first
impressions, team building, and primary objectives; review of recent
personal injury cases; and dealing with a judge who is acting unethically.
For more information or to register call us at (800) 274-6774 or visit
www.mleesmith.com/tn-personal-injury-law

IN THIS WEEKS TAM-Bytes

Court of Appeals says that because junior lien cannot be revived or
reattached following tax sale, lender did not have authority to
foreclose on property based upon lien rooted in 1996 deed of trust
which was extinguished at time of tax sale;
Court of Criminal Appeals holds that serious bodily injury suffered by
victim in especially aggravated robbery case may precede, be
contemporaneous with, or occur subsequent to, but in connection
with, taking of property of another;
Court of Criminal Appeals, in DUI case, upholds stop of defendants
vehicle when officer observed vehicle cross fog line of interstate well
in advance of exit ramp without good reason; and
Court of Criminal Appeals holds TCA 55-9-603, safety belt violation
law, does not prohibit imposition of $50 fine for first offense violation
of safety belt law given fact that legislature intended $10 fine imposed
in lieu of appearance in court to be applicable only to those
offenders who choose to submit fine instead of going to court.

WORKERS COMP APPEALS BOARD

CIVIL PROCEDURE: When employee alleged repetitive motion injuries to
her upper extremities as result of her work with employer, including left
carpal tunnel syndrome that was diagnosed in 8/15, employer denied benefits,
asserting employee made similar claim in 2014, which was denied, and that

her present claim is barred by statute of limitation because it was not filed
within one year of 2014 injuries, last day worked rule applied, and
employees limitations period did not begin to run until she left employment
on or about 9/15/15, and hence, Petition for Benefit Determination, filed on
11/20/15, was well within one year from last day she worked for employer.
Kelso v. Five Star Food Service, 6/15/16, Hensley, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1460&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1411&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff presented to government entity hospital (defendant)
with low back pain, inability to urinate, and numbness of her lower
extremities, she advised medical providers, including nurses and emergency
room physicians, that she had received diagnosis of cauda equine syndrome
from her chiropractor, doctors provided treatment but failed to recognize her
symptoms as suggestive of cauda equine syndrome, plaintiff was discharged
with instruction to increase her fluid consumption to treat possible impacted
kidney stone, her condition worsened, causing her to experience loss of
bladder and bowel function and ability to walk, plaintiff was later diagnosed
with cauda equine syndrome by physicians practicing in different hospital,
and plaintiff and her husband filed healthcare liability action, trial court
properly granted defendant summary judgment; application of doctrine of
res ipsa loquitur was precluded when plaintiffs alleged specific acts of
negligence in support of their claim, namely defendants failure to order
MRI or other diagnostic test or consult and failure to provide adequate
treatment, instruments, and facilities fit for intended use; other than
conclusory references to defendants failure to provide adequate treatment,
instruments, and facilities fit for intended use, plaintiffs did not set forth any
specific facts to establish that defendant acted with less than or failed to act
with reasonable care or that such failure proximately caused plaintiffs
injuries. Gilreath v. Chattanooga-Hamilton County Hospital Authority,
6/15/16, Knoxville, McClarty, 13 pages.
http://www.tncourts.gov/sites/default/files/gilreathopn.pdf

PROPERTY: In case in which plaintiff lender filed suit to quiet title to

certain real property and regain possession of property from its current
occupants, one of whom (Vandergriff) owed debt to lender that originated in
1996, at time of making of indebtedness, Vandergriff executed deed of trust
regarding property to secure debt, property was subsequently sold at

delinquent tax sale in 2008, tax sale purchaser conveyed title to property
back to Vandergriff in 2012, upon Vandergriffs failure to make timely
payments to lender in 2013, lender foreclosed on property pursuant to 1996
deed of trust, and lender was highest bidder at foreclosure sale and acquired
successor trustees deed to property, because trial court erred in relying on
successors trustees deed to establish ownership of property in lender, trial
courts judgment is reversed, and lenders claim to property is dismissed;
junior lien cannot be revived or reattached following tax sale; lien on title to
property in lenders favor, created by 1996 deed of trust, was extinguished in
2008 when property was sold at tax sale, and lender did not have authority to
foreclose on property based upon lien rooted in 1996 deed of trust which
was extinguished at time of tax sale; trial court erred in upholding lenders
interest in property based on invalid foreclosure sale and resultant successor
trustees deed conveying property to lender. Vanderbilt Mortgage &
Finance Inc. v. Vandergriff, 6/17/16, Knoxville, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/vanderbilt.opn_.final_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: It is not necessary in order to convict defendant of
especially aggravated robbery that victims serious bodily injury occur
contemporaneously to or precede taking, rather, only use of violence or fear
must precede or be contemporaneous with taking of property; attempted
aggravated robbery is lesser included offense of especially aggravated
robbery; trial court erred by failing to make any factual findings to support
its imposition of partial consecutive sentencing, and as such, case is
remanded for resentencing. State v. Henderson, 6/10/16, Jackson,
Holloway, 33 pages.
http://www.tncourts.gov/sites/default/files/hendersonantoniodickersonmarvinopn.pdf

CRIMINAL PROCEDURE: In DUI case, officer had reasonable suspicion

for traffic stop of defendants vehicle when officer received certain
information from police dispatch that caused him to be on alert for
defendants vehicle, once officer got behind defendants vehicle, he saw
vehicle drift within its lane, changing lanes in front of vehicle pulling trailer
without signaling, and cross half-way over fog line marking outer right lane
boundary of interstate, defendants vehicle crossed fog line well in advance
of exit ramp, and defendant continued to drive up exit ramp over fog line.
State v. Samples, 6/16/16, Knoxville, Holloway, 7 pages.
http://www.tncourts.gov/sites/default/files/samplesjamesdustin.pdf

EVIDENCE: Trial court properly admitted recording of 911 call as excited

utterance in attempted murder case when caller/declarant said that he heard
shooting and that he knew identity of shooter and where he lived; qualifying
startling event was shooting outside declarants home, declarants statements
that he heard shooting and describing person he knew to be shooter are
related to startling event, and declarant called 911 soon after he heard
shooting and before police arrived at scene. State v. Romero, 6/15/16,
Knoxville, Holloway, 11 pages.
http://www.tncourts.gov/sites/default/files/romerobendale.pdf

CRIMINAL SENTENCING: TCA 55-9-603, which states that violation of

safety belt requirement is Class C misdemeanor (punishable by no more than
30 days in jail or fine not to exceed $50) and that person charged with
violation of statute may, in lieu of appearance in court, submit $10 fine for
first violation, does not prohibit imposition of $50 fine for first offense
violation of safety belt law; legislatures use of phrase in lieu of appearance
in court in statute indicates that legislature intended $10 fine to be
applicable only to those offenders who choose to submit fine instead of
going to court lesser fine operates as largess offered in exchange for
offenders submitting to fine, using lower fine as incentive to encourage
early payment; trial court erred by taxing costs associated with defendants
seat belt violation conviction to defendant in violation of TCA 55-9-603(e),
which states, without exception, that [n]o clerks fee nor court costs
shall be imposed or assessed against anyone convicted of violation of safety
belt law. State v. Jamison, 6/14/16, Knoxville, Witt, 8 pages.
http://www.tncourts.gov/sites/default/files/jamisondevinlamaropn.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employee, custodian who experienced
pain in her back while mopping floor, did not come forward with sufficient
medical evidence from which to conclude that she is likely to prevail at
hearing on merits to prove her injury arose primarily out of and in course
and scope of her employment when panel physician could not opine that
employees mopping of floors caused her back condition, doctor opined that
employees back symptoms did not primarily arise out of work-related
injury, and doctor stated that her underlying degenerative condition is more
likely source of her symptoms. Johnson v. First United Methodist
Church, 1/25/16, Jackson, Luttrell, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1306&context=utk_workerscomp

WORKERS COMPENSATION: When doctor kept employee, plumber,

completely off work after his arm surgery on 3/18/15, employee remained
off work until 3/31/15, when doctor released him to light duty work with
restrictions limiting use of his right hand, doctor took employee totally off
work again on 4/16/15, after employer required employee to work outside
his restrictions, and employee testified that he remained off work until
8/25/15, when doctor placed him at maximum medical improvement (MMI),
employee was totally disabled from working from date of his surgery to
3/31/15, when he was released to light-duty work; employee was totally
disabled from working from 4/16/15 to 8/25/15, when he reached MMI;
employee was not entitled to disability benefits from 4/1/15 until 4/15/15
when doctor placed employee on restricted duty of no right-handed work,
employer initially accommodated his restrictions, but, after one and one-half
weeks, sent employee on job without helper, employee could not perform
job using one hand, and employer ultimately told employee he could not pay
him to do nothing and sent him home. Scott v. Snyder Services Plumbing
Co., 1/26/16, Memphis, Umsted, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1305&context=utk_workerscomp

EVIDENCE: When employer offered opinion of panel physician that

employees lower back problems did not arise primarily out of his
employment considering all possible causes, and employee objected to
doctors opinion on several grounds, including hearsay and best evidence
rule, opinion was admissible; employee objected to letter on ground that it
made employers attorney witness in proceeding, but counsel for employer
has statutory right to contact authorized medical providers, and employee
presented no authority in support for proposition that merely asking doctor
question, whether in deposition or letter, makes questioner witness. Adams
v. Pristine Building Services, 1/5/16, Murfreesboro, Tipps, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1291&context=utk_workerscomp

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