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TAM-BYTES

May 22, 2017


Vol. 20, No. 21

TAM Webinars

Zoning Appeals Navigation in Tennessee: Best Procedures and


Strategies for Attorneys, 60-minute webinar presented by Jason
Holleman, with West Nashville Law Group (WNLG) in Nashville, on
Thursday, June 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/zoning-062917
or call us at (800) 727-5257.

Preparing Title Opinions and Tackling Title Insurance Issues in


Tennessee, 60-minute webinar presented by Marcy S. Shelton, with
Reno & Cavanaugh in Nashville, on Tuesday, July 11, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/title-071117
or call us at (800) 727-5257.

Gun Dealer and Owner Liability in Tennessee: Client Counsel Tips


and Techniques, 60-minute webinar presented by James E. Wagner
with Frantz McConnell & Seymour in Knoxville, on Tuesday, July 18,
at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/guns-071817
or call us at (800) 727-5257.

Foreclosure Process and Case Management Strategies for


Tennessee Attorneys, 60-minute webinar presented by Mark
McGrady with Farrar & Bates in Nashville, on Thursday, July 20, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/foreclosure-072017
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, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-072717
or call us at (800) 727-5257.

Tennessee Series LLC: Client Counsel Best Practices for Liability


Separation, 60-minute webinar presented by Michael Goode, with
Stites & Harbison in Nashville, on Wednesday, August 2, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/series-LLC-080217
or call us at (800) 727-5257.

Tennessee Probate Case Law and Legislative Update: What


Attorneys Need to Know, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, August 3,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/probate-080317
or call us at (800) 727-5257.

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

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

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/tn-personal-injury-law or call (800) 727-5257.

12th annual
Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn


Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Eskind Moses, MTR
Family Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville;
Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville
attorney; Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black
Morgan & Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District
(Greeene, Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear,
Newman & Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County;
Kevin Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel,
Board of Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital


property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

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

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Workers Comp Appeals Board refers employer to Penalty Unit of


Bureau of Workers Compensation for appropriate action, if any,
based on employers failure to provide panel of physicians;
Court of Appeals, in affirming trial courts action in holding father
in contempt for non-payment of child support, says although
benefits father receives under Longshore and Harbor Workers
Compensation Act are not subject to levy, execution, and
attachment or other remedy for recovery or collection of debt,
nothing in Act prevents them from being considered as assets father
could use to pay child support;
Court of Appeals reverses trial courts denial of third partys motion
to intervene in case in order to gain access to documents in record
which was previously sealed by trial court pursuant to agreed order
between original parties;
Court of Criminal Appeals rules testimony concerning which cell
phone tower defendants phone, victims phone, and phone belonging
to defendants friend who drove car on night of murder were
connected to at particular time, as reflected in cell phone records
obtained, was properly admitted as lay testimony;
Court of Criminal Appeals says defendants conduct in merely
avoiding or evading service of process, did not amount to offense of
obstructing or preventing service of process and that defendants
action in kicking police dog did not amount to preventing or
obstructing arrest; and
Court of Criminal Appeals holds Drug-Free School Zone Act did not
apply to defendants conviction for facilitation of delivery of .5 gram
or more of cocaine within drug-free school zone or his two
convictions for attempted delivery of .5 gram or more of cocaine
within drug-free school zone.

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee alleged that, while


working, he bent down to pick up piece of paper from floor and twisted his
knee, causing him to fall to his knees with his left knee hitting floor before
his right knee, evidence established that employees left knee injury
occurred in course and scope of his employment, but it failed to establish
that employment contributed more than 50% in causing injury, considering
all causes, when doctor agreed that it would depend on action position
employee put himself in to retrieve paper as opposed to whether or not
there was piece of paper on floor or employee was bending down to tie his
shoes. Panzarella v. Amazon.com Inc., 5/15/17, Hensley, partial dissent by
Conner, 22 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1797&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1703&context=utk_workerscomp

WORKERS COMPENSATION: When employee claimed to have


suffered back injury retrieving ice from employers ice machine, employer
denied claim without providing panel of physicians or other benefits and,
after employee requested expedited hearing, had employee examined by
physician of its choosing, and that physician opined that employment did not
contribute more than 50% in causing employees current condition, trial
court correctly declined to award medical expenses and temporary disability
benefits based on finding that employee was unlikely to prevail in
establishing compensable aggravation or injury at trial; there are questions
about whether employer met obligations imposed upon it by TCA 50-6-204
rather than providing employee panel of physicians, employer denied
claim shortly after it was reported, concluding that [b]ased on the prior
medical records, the claimant has chronic back issues not work related.
There is no specific event that occurred that caused a compensable work
injury but employee described particular event at work on particular day
resulting in particular symptoms and employer did not obtain medical
opinion regarding whether employees complaints were causally related to
incident at work until over five months after learning of accident; employer
is referred to Penalty Unit of Bureau of Workers Compensation for
appropriate action, if any, based on employers failure to provide panel of
physicians in accordance with Rule 0800-02-01-.25. Berdnik v. Fairfield
Glade Community Club, 5/18/17, Davidson, 18 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1806&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1771&context=utk_workerscomp

COURT OF APPEALS

COMMERCIAL LAW: When BlueCross BlueShield of Tennessee, Inc.


(BlueCross) and Individual Healthcare Specialists, Inc. (IHS) entered into
general agency agreements that authorized IHS to solicit applications for
individual insurance policies through IHSs in-house agents and outside
subagents, commission rates to be paid were stated in schedule, during
first 11 years, BlueCross modified commission schedule several times with
each modification prospective only, in 2011, BlueCross modified
commission schedule and, for first time, applied commission schedule
retrospectively, IHS determined that BlueCross had been underpaying
commissions since 1999, IHS filed suit asserting claims for, inter alia,
breach of contract and damages, while also claiming it was entitled to
recover its attorney fees based on contracts indemnification provision,
shortly thereafter, BlueCross terminated general agency agreement and
began paying renewal commissions directly to IHSs subagents instead of
paying them to IHS, IHS amended complaint to assert claim that BlueCross
also breached agreement by failing to pay commissions directly to IHS, trial
court did not err in determining that BlueCross breached contract by
underpaying commissions, by applying 2011 commission rates for renewals
to existing policies, and by failing to pay all renewal commissions to IHS
after termination of general agency agreement; trial court erred by
considering extrinsic evidence, and by going beyond four corners of
integrated contract, to ascertain whether right to recover attorney fees under
indemnification provision applied to dispute between contracting parties;
case is remanded with instructions to deny IHSs claim for attorney fees.
Individual Healthcare Specialists Inc. v. BlueCross BlueShield of
Tennessee Inc., 5/15/17, Nashville, Clement, 41 pages.
http://www.tncourts.gov/sites/default/files/indiv.healthv.bluecro.blushi.opn_.pdf
FAMILY LAW: In case in which parties, at time of their divorce, were
named co-primary residential parents of their two children, with each
parent receiving equal visitation time with children, parties subsequently
filed petitions seeking to be named exclusive primary residential parent, and
trial court named father primary residential parent and awarded him
increased visitation time with children, evidence did not preponderate
against trial courts finding of material change in circumstances warranting
modification of parenting plan when current plan was no longer working and
fathers home environment was more stable father had remarried and had
another child, while mother was living with (and being supported by) Jones,
close friend and childrens pediatrician, but because Jones had no legal
obligation to continue to support mother and children, should relationship
sour or end, mother and children would be without home. Bell v. Bell,
5/18/17, Knoxville, Swiney, concurrence by Susano, 18 pages.
http://www.tncourts.gov/sites/default/files/bell_v_bell_corrected_opinion.pdf
http://www.tncourts.gov/sites/default/files/bell_v_bell_concurring_opinion.pdf

FAMILY LAW: Evidence did not preponderance against trial courts


decision to deduct $10,000 from husbands portion of equity in marital home
and awarding that amount to wife in 2016 divorce case when wife had
received $10,000 accident settlement in 2009, and wife wanted to use that
money to pay for hot tub to treat her back injury as well as to pay for fence
for marital home, but husband deposited wifes $10,000 check into his IRA;
because $10,000 constituted wifes separate property, trial court properly
returned that amount to wife by deducting it from husbands portion of equity
in marital home. Cardle v. Cardle, 5/17/17, Nashville, Bennett, 15 pages.
http://www.tncourts.gov/sites/default/files/cardle.opn_.pdf

FAMILY LAW: In case in which trial court determined that language and
intent of parties antenuptial agreement was to separate all property acquired
after marriage, with exception of any property acquired jointly or titled in
names of both parties, and to divide personal services income acquired by
parties after marriage as their separate property, because antenuptial
agreement failed to provide definition for phrase any property, phrase
should be interpreted to encompass property of any sort, including earnings
from employment, retirement, or elsewhere; by construing antenuptial
agreement as whole, there is clear indication that all property acquired after
marriage was to remain separate property unless property was acquired
jointly or in both parties names; trial court properly determined that personal
services income acquired after marriage was separate property rather than
marital property; trial court did not abuse discretion in considering husbands
separate property for purposes of determining reasonable, fair and
equitable award of alimony to wife; considering post-divorce standard of
living of parties husband continued to enjoy lavish lifestyle, while wife has
no home, is driving car that may or may not continue to function, and is
saddled with number of debts due to her long absence from workplace and
protracted and extensive nature of divorce proceedings as well as financial
needs of wife and ability of husband to pay, trial court did not abuse
discretion in awarding wife $8,000 per month as alimony in futuro. Seifert v.
Seifert, 5/17/17, Knoxville, Clement, 23 pages.
http://www.tncourts.gov/sites/default/files/seifert_v_seifert.pdf

FAMILY LAW: In case in which father, quadriplegic, was held in


contempt for non-payment of child support, although benefits father receives
under trust pursuant to Longshore and Harbor Workers Compensation Act
(Act) are exempt from levy, execution, or attachment, father may still be
found guilty of contempt; although benefits father receives under Act are not
subject to levy, execution, and attachment or other remedy for recovery or
collection of debt, nothing in Act prevents them from being considered as
assets that father could use to pay child support; person need not have
income from employment in order for court to find that person has ability to
pay child support it is quite possible for person to have financial resources
other than income from employment that could be utilized to pay child
support; because father had present ability to pay child support but willfully
failed to do so, father was guilty of contempt. State ex rel. Bass v. Gonzalez-
Perez, 5/19/17, Jackson, Swiney, 16 pages.
http://www.tncourts.gov/sites/default/files/bassdeedraclimeropn.pdf

CIVIL PROCEDURE: Trial court erred in denying third partys motion to


intervene in case in order to gain access to documents in record when entire
record was previously sealed by trial court pursuant to agreed order between
original parties; due to lack of detailed information in appellate record about
sealed documents and trial courts lack of findings to justify decision to deny
motion for modification of protective order, it is appropriate to vacate trial
courts denial of motion and remand for trial court to determine whether
record should remain sealed due to compelling reason. Kocher v. Bearden,
5/15/17, Jackson, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/kocherteresaopn.pdf

APPEAL & ERROR: Most reasonable construction of TCA 20-12-127 and


29-18-129 is that indigent defendant in unlawful detainer action who has
petitioned for writs of certiorari and supersedeas is required to post
possessory bond, but bond does not have to include costs of action; bond
posted by indigent defendant must be sufficient in amount to cover damages
and value of rent of premises during litigation. Gallatin Housing Authority
v. Pelt, 5/16/17, Nashville, McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/gallatinhousingauthority.opn_.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of first degree


felony murder and attempted especially aggravated robbery, trial judge erred
by instructing jury that it could consider defendants prior robbery
conviction for issues other than intent and identity, specifically as part of
common scheme or plan, i.e., signature crime, or to prove his motive;
given fact that there was no factual basis in evidence to support use of
defendants prior robbery conviction to prove signature crime, and they
essentially left finder of fact to apply evidence as proof of defendants
propensity to commit robbery, defendants convictions are reversed, and
case is remanded for new trial; testimony concerning which cell phone tower
defendants phone, victims phone, and phone belonging to defendants
friend who drove car for defendant on night of murder were connected to at
particular time, as reflected in cell phone records obtained, was properly
admitted as lay testimony. State v. Greer, 5/17/17, Knoxville, Woodall,
concurrence by Thomas, 44 pages.
http://www.tncourts.gov/sites/default/files/greerdominiqueopn.pdf

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


firearm during commission of dangerous felony, evading arrest, reckless
endangerment, and possession of marijuana with intent to sell and deliver,
because prosecutor improperly challenged juror on basis of race, defendants
convictions are reversed, and case is remanded for new trial; prosecutor
excused only prospective African-American juror and did not dispute
allegation that he did not challenge other jurors for reason he challenged
juror prosecutors explanation for challenging juror was not consistent
with his treatment of other similarly situated jurors who were not challenged
in spite of their experiences with drug problem when prosecutor stated that
he challenged juror because her answer indicated her family could be
involved in use or distribution of drugs, which record does not support; trial
judge did not err by declining to merge defendants convictions for Class D
felony evading arrest and Class E felony reckless endangerment. State v.
Collins, 5/16/17, Nashville, Montgomery, 22 pages.
http://www.tncourts.gov/sites/default/files/tommy_collins_jr..pdf
CRIMINAL LAW: In case in which defendant was convicted of one count
of preventing or obstructing arrest in connection with his kicking police dog
in crawl space, which was presumably to defend against dogs complying
with order from deputy to bite defendant, and two counts of obstructing or
preventing service of process, because defendants conduct, i.e., merely
avoiding or evading service of process, did not constitute criminal offense,
defendants convictions are reversed, and charges are dismissed; with regard
to two counts of obstructing or preventing service of process, defendant
simply declined to cooperate with process server, which is not criminal
offense; because dog was not law enforcement officer, and no evidence was
presented to suggest defendant used force against any of numerous deputies
involved in case, evidence was not sufficient to support defendants
convictions for preventing or obstructing arrest. State v. Burgess, 5/15/17,
Knoxville, Montgomery, 27 pages.
http://www.tncourts.gov/sites/default/files/william_burgess_opinion.pdf

CRIMINAL PROCEDURE: In drug case, trial court properly determined


that defendant lacked standing to challenge search of residence when
defendant, who told detective that he could not give permission [to search
home] because it was not his residence, disclaimed any interest in home,
prompting officers to seek consent from another individual; state was not
required to file some sort of written response prior to suppression hearing or
to raise objection at beginning of hearing in order to preserve its challenge to
defendants standing; fact that detective initially chose to conduct knock
and talk at residence because that address was associated with defendants
name on report of pseudoephedrine purchases does not negate defendants
subsequent disclaimer of his interest in property. State v. Sutton, 5/19/17,
Nashville, Easter, 18 pages.
http://www.tncourts.gov/sites/default/files/bruce_sutton.pdf

CRIMINAL PROCEDURE: In drug case, trial court properly denied


defendants motion to suppress when facts set forth in affidavit in support of
search warrant established informants veracity and basis of knowledge,
both of which remain highly relevant considerations under totality-of-
circumstances analysis adopted in State v. Tuttle, 42 TAM 15-2 (Tenn.
2017). State v. Alford, 5/17/17, Nashville, Dyer, 7 pages.
http://www.tncourts.gov/sites/default/files/alford.pdf

CRIMINAL SENTENCING: Pursuant to State v. Gibson, 506 SW3d 450


(Tenn. 2016), Drug-Free School Zone Act did not apply to defendants
conviction for facilitation of delivery of .5 gram or more of cocaine within
drug-free school zone or his two convictions for attempted delivery of .5
gram or more of cocaine within drug-free school zone; trial court erred when
classifying defendants facilitation and delivery convictions as Class B
felonies and requiring 100% service of minimum sentence; sentences are
vacated, and case is remanded for resentencing of all convictions as Class C
felonies. State v. Pinegar, 5/16/17, Nashville, Dyer, 5 pages.
http://www.tncourts.gov/sites/default/files/pinegarv_remand_opinion.pdf

TRIAL COURTS

COMMERCIAL LAW: Partial summary judgment is granted to effect that


unilateral lease renewal by LLC member Raley, without consent of LLC
member Brinkman, constitutes significant business transaction outside the
ordinary course of business as provided in Partnership Agreement, and,
because there was no consent, constitutes unauthorized LLC act under
TCA 48-249-105(c); as to TCA 48-249-105(c) remedy, summary judgment
is not appropriate, and determination of remedy requested by Brinkman of
invalidating lease renewal will be determined at conclusion of trial to take
into account equities of case as provided in TCA 48-249-105(c). Raley v.
Brinkman, 4/20/17, Davidson Chancery, Lyle, 15 pages.
http://www.tncourts.gov/sites/default/files/docs/raley_v._brinkman_16-196-bc_-_4-20-17.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: TCA 50-6-204(h) is construed to mean


exactly what it says that psychological evaluations are limited to cases
where authorized treating physician identified as directed under TCA 50-6-
204(a)(3) makes referral; there is no merit to employees contention that trial
court may order psychological evaluation based on reports of two other
doctors who conducted independent medical evaluations; because authorized
treating physician never referred employee for psychological evaluation,
employee did not come forward with sufficient evidence from which to
conclude that he is likely to prevail at hearing on merits; his request for
psychological evaluation is denied at this time. Lively v. Prudential Security
Inc., 2/24/17, Knoxville, Lowe, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1736&context=utk_workerscomp

WORKERS COMPENSATION: When employee, press operator,


received electric shock, and Dr. Graham, neurologist from panel, wrote that
employees subjective pain could best be clinically described as somatoform
pain and that there is no ongoing cause-and-effect relationship between
alleged work injury and ongoing subjective complaints predominantly of
pain in left leg, employee failed to introduce sufficient evidence to overcome
presumption by preponderance of evidence that Grahams opinion is correct;
Dr. Pasupuleti indicated mere disagreement with Graham as he mentioned
that issue of pain associated with electrical shock is well studied, but he
offered no particulars about these studies or their application to employees
condition. Beard v. Electrolux Home Products Inc., 2/27/17, Nashville,
Switzer, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1737&context=utk_workerscomp

WORKERS COMPENSATION: When employee testified that he began


process of hooking up machine to flush transmission line on car that was on
lift, as he began task, he remembers being under car and picking up electric
cord to plug into wall outlet, he had unhooked sway bar on car and had to
take step toward front tire to avoid bar and get out from under car, next thing
employee remembered is being on ground with his co-worker standing over
him, co-worker testified that he had his back turned while employee was
under vehicle, he heard thump that sounded like basketball hitting
someone in head, and when he turned around, he saw employee staggering
and then collapsing to floor, apparently unconscious, and employees
symptoms following event were similar to symptoms he had suffered in past
when diagnosed with concussion, employees circumstantial evidence was
insufficient to establish causal link necessary to render incident
compensable; testimony of neurologist, who was aware of employees
asserted history, that employees history was suggestive of possible closed
head injury with brief post-concussive syndrome, falls short of reasonable
degree of medical certainty required of physicians to establish causation.
Wright v. R & D Enterprises of TN, 2/27/17, Cookeville, Durham, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1738&context=utk_workerscomp

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