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TAM-BYTES

April 10, 2017


Vol. 20, No. 15

TAM Webinars

Valuing and Dividing Marital Property in Tennessee: An


Accountants Essential Update for Attorneys, 60-minute webinar
presented by Michael Costello, with Elliott Davis Decosimo in
Chattanooga, on Tuesday, May 23, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dividing-052317 or call us at
(800) 727-5257.

Immigration Issues and Juvenile Law in Tennessee Mastering the


SIJ Program and More, 60-minute webinar presented by Terry
Olsen, with The Olsen Law Firm in Chattanooga, on Wednesday, June
7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-060717
or call us at (800) 727-5257.

Business Divorce Update: Best Practices for Effective Client


Counsel, 60-minute webinar presented by Richard Spore, with Bass,
Berry & Sims in Memphis, on Wednesday, June 14, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/business-divorce-061417
or call us at (800) 727-5257.

Intellectual Property Laws in Business Transactions: Key


Considerations for Attorneys, 60-minute webinar presented by Kelly
Frey, with Frost Brown Todd in Nashville, on Thursday, June 15, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/intellectual-061517
or call us at (800) 727-5257.
Key Elements of Wills in Tennessee, 60-minute webinar presented
by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, June 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-061517
or call us at (800) 727-5257.

Injury Damages in Tennessee: Whats the Extentand How to


Prove it, 60-minute webinar presented by Stephen R. Leffler, with
The Law Office of Stephen R. Leffler in Memphis, on Thursday, June
22, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-061517
or call us at (800) 727-5257.

On-Site Event
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21-22


WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties); Chancellor
Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge Walter Kurtz,
former Davidson County Circuit judge/former Tennessee senior judge; Laura Baker, Law
Offices of John Day, Brentwood; Brandon Bass, Law Offices of John Day, Brentwood; J.
Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett, Batson Nolan, Clarksville;
James Exum, Leitner, Williams, Dooley & Napolitan, Chattanooga; Steve Gillman, Pryor,
Priest, Harber, Floyd & Coffey, Knoxville; Michael H. Johnson, Howard, Tate, Sowell,
Wilson, Leathers, & Johnson, Nashville; Mary Ellen Morris, Kinnard, Clayton & Beveridge,
Nashville; Bryan Moseley, Moseley & Moseley, Murfreesboro; William J. Rieder, Spears,
Moore, Rebman & Williams, Chattanooga; and Melanie Stewart, Heaton & Moore,
Memphis.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com or call (800) 727-5257.


IN THIS WEEKS TAM-Bytes

Supreme Court affirms grant of summary judgment in favor of


defendants, general contractor and two flooring subcontractors, in suit
alleging that negligence of defendants caused fire that destroyed
partially completed house;
Supreme Court overrules State v. Jacumin and adopts totality-of-the-
circumstances analysis set forth in Illinois v. Gates for determining
whether affidavit sufficiently establishes probable cause for issuance
of search warrant;
Supreme Court, in issue of first impression, says officers warrantless
entry onto defendants property was constitutionally permissible
despite existence of several No Trespassing signs near defendants
unobstructed driveway;
Court of Criminal Appeals holds trial court committed plain error by
instructing jury on mental states of knowingly and recklessly with
regard to two firearm offenses;
Court of Criminal Appeals says officer had reasonable suspicion to
support stop defendants vehicle based on officers belief that
defendant was not wearing seat belt; and
Court of Criminal Appeals rules good-faith exception to exclusionary
rule applied with respect to testing of defendants blood in DUI case.

SUPREME COURT

TORTS: When plaintiff alleged that negligence of general contractor and two
flooring subcontractors caused fire that destroyed partially completed house,
trial court properly ruled that subcontractors and general contractor were
entitled to summary judgment; plaintiffs could not rely on res ipsa loquitur
because they did not produce sufficient evidence that general contractor was
in exclusive control of specific cause or all reasonably probable causes of fire;
plaintiffs did not produce sufficient evidence to establish that any negligence
of subcontractors was cause in fact of fire. Jenkins v. Big City Remodeling,
4/5/17, Knoxville, Lee, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/jenkinse.opn_.pdf

CRIMINAL PROCEDURE: Intermediate appellate court erred in


reversing trial court and holding that search warrant affidavit was
insufficient to establish probable cause for issuance of search warrant; State
v. Jacumin, 778 SW2d 430 (Tenn. 1989), is overruled and analysis set forth
in Illinois v. Gates, 462 US 213 (1983), is adopted for determining whether
affidavit sufficiently establishes probable cause for issuance of search
warrant under Tenn. Const. Art. I, Sec. 7; evidence was sufficient to support
defendants convictions for conspiracy to possess over 300 pounds of
marijuana with intent to sell or deliver and conspiracy to commit money
laundering; trial court properly ordered forfeiture of over $1 million in cash
seized from defendant when search warrant was executed on his property.
State v. Tuttle, 4/5/17, Nashville, Clark, Page not participating, 43 pages.
http://www.tncourts.gov/sites/default/files/tuttlej.opn_.pdf

CRIMINAL PROCEDURE: Trial court properly denied defendants


motion to suppress evidence obtained during warrantless search of his home
when officers entry onto defendants property in order to conduct knock-
and-talk was constitutionally permissible in spite of posted No
Trespassing signs near defendants unobstructed driveway; homeowner
who posts No Trespassing sign is simply making explicit what law already
recognizes, i.e., that persons entering onto another persons land must have
legitimate reason for doing so or risk being held civilly, or perhaps even
criminally, liable for trespass; knock-and-talk conducted within
constitutional parameters is legitimate reason for police officers to enter
curtilage of house via driveway that is obstructed only by several No
Trespassing signs, but no fence or closed gate. State v. Christensen, 4/7/17,
Jackson, Bivins, dissent by Lee, Page not participating, 29 pages.
http://www.tncourts.gov/sites/default/files/christensenj.opn_.pdf
http://www.tncourts.gov/sites/default/files/christensenj.opn_.dis_.pdf

COURT OF APPEALS

FAMILY LAW: In case in which mother filed petition to modify parties


parenting plan seeking to be designated childs primary residential parent,
trial court did not abuse discretion in denying mothers request to present
child as witness to her allegations of physical and emotional abuse and
neglect when, assuming that childs testimony was relevant, her
corroboration of mothers factual allegations was of minimal probative value
as record reflects that father admitted to majority of allegations, and
guardian ad litem advised court of childs desire to spend more time with
mother. Howe v. Howe, 4/10/17, Knoxville, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/howe_v_howe.pdf
GOVERNMENT: When Metropolitan Government of Nashville (Metro)
filed petition for writ of mandamus, asserting that it was entitled to receive
full funding for English language learner (ELL) teachers and translators in
accord with ratios found in TCA 49-3-307(a)(7), chancellor correctly denied
petition; Metro did not establish that there is a clear and specific legal right
to be enforced, or corresponding duty on part of State of Tennessee to fully
fund ELL; Metro has adequate remedy for its alleged wrong, i.e., suit that
addresses unanswered questions raised through development of facts
necessary for decision; mandamus proceedings were not designed to provide
answers to myriad questions swirling around adequate funding of BEP
items. State ex rel. Metropolitan Government of Nashville v. State, 4/3/17,
Nashville, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/state_ex_rel._metro_v._st_oftn.corr_.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Defendants convictions for attempted second degree


murder and employment of firearm during that offense did not violate double
jeopardy when statute contains clear indications that legislature intended to
permit separate punishments for firearm offense and for underlying dangerous
felony. State v. Sample, 4/6/17, Jackson, Glenn, 15 pages.
http://www.tncourts.gov/sites/default/files/sample_edwardopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of both


especially aggravated kidnapping and aggravated robbery when defendant
and his cohort did not need to disable victims telephones, take her computer
and her means of transportation, and confine her to bathroom in order to
effectuate robbery perpetrators actions were designed to prevent victim
from summoning assistance and reduce[] their risk of detection. State v.
Doree, 4/6/17, Nashville, Ogle, 11 pages.
http://www.tncourts.gov/sites/default/files/doree_wendall_curtis_opn.pdf

CRIMINAL LAW: In case in which defendant was convicted of possession


of marijuana with intent to sell and deliver, possession of drug
paraphernalia, and two counts of possession of firearm with intent to go
armed during commission of dangerous felony, trial court committed plain
error by instructing jury on mental states of knowingly and recklessly
with regard to two firearm offenses; because erroneous instruction lessened
states burden of proof, defendants rights to fair trial and trial by jury were
violated; defendants convictions for these offenses are reversed, and case is
remanded for new trial on both counts. State v. Watkins, 4/5/17, Jackson,
McMullen, dissent by Holloway, 24 pages.
http://www.tncourts.gov/sites/default/files/watkinsopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


DUI (third offense), DUI (per se), and violation of seat belt statute, trial judge
properly denied defendants motion to suppress evidence discovered as result
of search of defendants vehicle when officer had reasonable suspicion to
support stop based on fact that defendant was not wearing seat belt; video of
stop is consistent with trial courts finding that defendants shoulders and head
area were visible to officer when he stopped defendants vehicle and with
officers testimony that he was able to see through defendants vehicles
window that there was no shadow or outline of seat belt restraining
defendant. State v. Luthi, 4/7/17, Nashville, Wedemeyer, 5 pages.
http://www.tncourts.gov/sites/default/files/michael_luthi.pdf

CRIMINAL PROCEDURE: In case in which defendant was indicted on


various DUI charges, trial court erred in suppressing evidence derived from
testing of defendants blood when good-faith exception to exclusionary rule
applied; based upon fact that evidence of blood alcohol content begins to
diminish shortly after drinking stops, compulsory breath or blood test, taken
with or without consent of donor, falls within exigent circumstances
exception to warrant requirement. State v. Carter, 4/5/17, Nashville,
Holloway, 13 pages.
http://www.tncourts.gov/sites/default/files/carterhelkienathan.remand.pdf

CRIMINAL PROCEDURE: In case in which defendant was charged with


intent to sell more than .5 ounce but less than 10 pounds of marijuana, trial
judge properly granted defendants motion to suppress evidence recovered
from search of home in which marijuana was found when defendant had
standing to challenge search of home; although defendant voluntarily told
officers that he did not live at house and that house did not belong to him but
to his then-girlfriend, defendant did not affirmatively and expressly disclaim
or relinquish his privacy interest in home, and defendants leaving on foot
after answering deputies questions and after deputies told him he was free
to leave is of no consequence to case defendant was locked out of home
and did not possess keys to any of vehicles parked in driveway; trial courts
dismissal of charge against defendant is affirmed. State v. Watson, 4/10/17,
Knoxville, Montgomery, dissent by Easter, 14 pages.
http://www.tncourts.gov/sites/default/files/durand_dissenting_opinion.pdf
COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee fell in icy parking lot at


work while walking to her car at end of her shift, employee testified she hurt
her right knee and hand in accident, approximately one year prior to this
accident, employee underwent surgery to repair torn meniscus in same knee,
and employee sought additional medical benefits, specifically surgery for
allegedly work-related knee injury, while both lay testimony and expert proof
are insufficient at this point to establish compensability of employees claim
by preponderance of evidence, evidence is sufficient to support order
compelling medical benefits; to find otherwise and deny requested surgery
would effectively foreclose only means by which doctor may definitively
ascertain causation; based on doctors testimony, proposed surgical treatment
was reasonable and necessary, and employer is ordered to provide it promptly.
Woodruff v. Wal-Mart Associates Inc., 1/23/17, Nashville, Baker, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1696&context=utk_workerscomp

ATTORNEY GENERAL OPINION

FAMILY LAW: Two proposed bills one amending Tennessees criminal


abortion statute by extending several of its existing restrictions to apply to
pregnancies when fetus has reached gestational age of 20 weeks and another
enacting new Tennessee Infants Protection Act, which contains post-
viability abortion ban of any fetus of at least 24 weeks gestational age
would be unconstitutional if enacted. Attorney General Opinion 17-24,
3/31/17, 5 pages.
http://www.tn.gov/assets/entities/attorneygeneral/attachments/op17-024.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