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TAM-BYTES

June 12, 2017


Vol. 20, No. 24

TAM Webinars

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.

Parental Relocation in Tennessee: The Impact of the Aragon


Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.

2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.

On-Site Events
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.

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

Court of Appeals finds evidence preponderated against trial courts


adoption of parenting plan limiting fathers parenting time with child
to only 66 days per year;
Court of Appeals finds parties antenuptial agreement unenforceable
when there was immense gap in parties education and sophistication
and experience in business affairs, and wife was rushed into signing
agreement only two days before couple was to go on vacation and be
married;
Court of Appeals says when notice of forfeiture does not go
unclaimed, it is not date of mailing that triggers time period in which
secured party must file claim, but date notice was received by
recipient;
Court of Criminal Appeals reverses murder conviction when trial
court committed reversible error by admitting irrelevant evidence
found on defendants cell phone and by allowing jurors to separate
during trial; and
Sixth Circuit holds that tracking defendants real-time cell phone GPS
coordinates to locate and subsequently arrest him does not amount to
Fourth Amendment search.
SUPREME COURT

FAMILY LAW: Supreme Court adopts modified plain language forms for
uncontested divorces with no minor children to take effect 7/1/17. In re
Modifications to Plain Language Forms for Uncontested Divorces with No
Minor Children, 5/25/17, Nashville, 36 pages.
http://www.tba.org/sites/default/files/order_modifying_forms_uncontested_divorce_no_children-sct_r52.pdf

COURT OF APPEALS

PROPERTY: When developer posted performance bond securing


completion of subdivisions infrastructure, regional planning commission
approved subdivision plat, although infrastructure, including roads and
utilities, had not been completed, developer went into bankruptcy and
development of subdivision was halted, State of Tennessee (State) bought
land comprising all of subdivision lots, except two owned by plaintiffs, all of
remaining land in intended subdivision, except for several other lots
purchased by individuals before bankruptcy, is now part of Doe Mountain
Recreation Area entity subsequently created by State and plaintiffs filed
suit against planning commission and several state entities for breach of
contract between developer and planning commission and asked trial court
to issue writ of mandamus compelling county to complete proposed
subdivision infrastructure, trial court properly granted defendants summary
judgment; once subdivision plan failed and approval was rescinded,
planning commission retained discretion to consider and decide what to do
next, and plaintiffs pointed to no authority establishing clear and
unequivocal right to compel Johnson County or State to pay, at taxpayer
expense, for roads and utility lines running to their lots under these unusual
and unfortunate circumstances. State ex rel. Appaloosa Bay LLC v.
Johnson County, 6/9/17, Knoxville, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/appaloosa_bay_opinion.pdf

FAMILY LAW: Evidence preponderated against trial courts adoption of


parenting plan limiting fathers parenting time with child to only 66 days per
year when prior period of equal parenting during pendency of divorce
proceedings, parties shared equal parenting time with child allowed child
to develop closer relationship with father and paternal grandmother in
Illinois, and during this period, child also engaged in extracurricular
activities in Illinois, such as sports, Girl Scouts, and dance, which father and
paternal grandmother described as important part of childs life; case is
remanded for trial court to adopt plan that increases fathers time with child.
Neveau v. Neveau, 6/7/17, Knoxville, McClarty, 21 pages.
http://www.tncourts.gov/sites/default/files/neveau_v_neveau.pdf

FAMILY LAW: In case in which trial court, during divorce case, found
provision in parties antenuptial agreement (Agreement) purporting to
cap wifes alimony unenforceable but otherwise upheld Agreement,
husband failed to carry his burden as to validity of entire Agreement
when there was immense gap in parties education and sophistication and
experience in business affairs, wife was rushed into signing agreement
only two days before couple was to go on vacation and be married, and it
is doubtful that wife could have obtained independent counsel and made
informed decision before setting out so soon on vacation to be married as
planned; more sophisticated spouse is, less time he or she may well need
in order to be able to enter into agreement freely, knowledgeable, and in
good faith without duress or undue influence, and conversely, less
sophisticated spouse is, more time he or she may need. Grubb v. Grubb,
6/9/17, Knoxville, Swiney, 23 pages.
http://www.tncourts.gov/sites/default/files/grubbvgrubbopinion.pdf

CIVIL PROCEDURE: When notice of forfeiture does not go unclaimed, it


is not date of mailing that triggers time period in which secured party must
file claim, but date notice was received by recipient; only in event that
potential claimant refuses to accept delivery and notice is returned
unclaimed does date of mailing commence applicable time period. Ally
Financial v. Tennessee Department of Safety & Homeland Security,
6/7/17, Nashville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/ally.financial.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Defendants convictions for premeditated first degree


murder and abuse of corpse are reversed, and case is remanded for new trial
when trial court committed reversible error by admitting irrelevant evidence
found on defendants cell phone and by allowing jurors to separate during
trial jury separation occurred when jurors were allowed to go home
unsupervised; two concurring judges disagree with lead opinion that juror
separation also occurred when jurors were allowed to speak with family
members by telephone while in presence of court officers and that trial judge
committed reversible error by admitting evidence related to defendants
knowledge of DNA matters due to his presence at prior judicial proceeding
at which expert DNA proof was received. Editors note: Judge Easter
joined in Judge Montgomerys concurrence. State v. Bigoms, 6/7/17,
Knoxville, Thomas, concurrence by Montgomery, 47 pages.
http://www.tncourts.gov/sites/default/files/tony_bigoms_opinion.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of


tampering with evidence when defendant created only minimal delay in
officers discovery of drugs, i.e., marijuana and pill; fact that defendant
momentarily hid bag of marijuana in her hand or her pants neither prevented
officers from finding it nor from its being tested and used against her at trial
although defendant was in custody when this incident occurred, she had
not been informed that she was under arrest, and, as such, she was under no
obligation to turn over items in her pockets incriminating herself, and she
was under no obligation to confess to unlawful possession of controlled
substance and defendants conduct was merely to conceal her possession
of drugs, not marijuana and pill themselves. State v. Brown, 6/7/17,
Knoxville, Montgomery, 16 pages.
http://www.tncourts.gov/sites/default/files/alvina_brown_opinion.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


burglary of automobile, trial judge erred in denying defendants motion to
suppress his statement to police when officer initiated conversation with
defendant without first giving defendant his Miranda warnings, during
encounter, defendant merely inquired into reason for his arrest, and after
advising defendant that he was under suspicion of having broken into a
vehicle on the lot, officer put defendant in back of his squad car and stated,
[T]hat was pretty bold what you did because of the fact theres cameras out
here. I dont know if you know it, but was an off duty police officer that saw
you doing what you were doing and he made the phone call, and defendant
responded, I was just getting it for a friend of mine; trial judges error was
harmless in light of overwhelming evidence against defendant. State v.
Hubbard, 6/7/17, Jackson, Dyer, 13 pages.
http://www.tncourts.gov/sites/default/files/hubbard_marioopn.pdf

EVIDENCE: While state and federal courts have frequently qualified law
enforcement officers as expert witnesses to interpret conversations that use
slang, street language, and jargon of illegal drug trade, when officer is not
qualified as expert witness, officers testimony, as with any other lay opinion
witness, remains governed by TRE 701; trial court erred in allowing officer
to provide lay opinion testimony regarding his understanding of meaning of
phrase, hit this lick, when officer was not participant in text message
exchange, he did not have personal knowledge of facts being related in text
message conversation, he did not observe text message exchange as it
occurred, and testimony was not based on officers perception of text
messages as they occurred, rather, he testified that he knew of meaning of
phrase based on his police training and expertise; trial courts error in
allowing officer to testify without first being qualified as expert was
harmless when officers testimony concerning phrase hit this lick did not
more probably than not affect verdict in case. State v. Goodwin, 6/7/17,
Jackson, McMullen, 28 pages.
http://www.tncourts.gov/sites/default/files/goodwinleeopn.pdf

PUBLIC CHAPTERS

COMMERCIAL LAW: Automated Vehicles Act sets forth requirements


for operation of ADS-operated vehicle on public roads in Tennessee. 2017
PC 474, effective 6/6/17, 6 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0474.pdf

CRIMINAL LAW: Organized Retail Crime Prevention Act sets forth


offense of organized retail crime punishable as theft. 2017 PC 472, effective
7/1/17, 2 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0472.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: In case in which arrest warrant was issued for


defendant in connection with armed robbery, governments detection of
defendants whereabouts, which included tracking defendants real-time cell
phone GPS location data for approximately seven hours preceding his arrest,
did not amount to Fourth Amendment search under United States v. Skinner,
690 F3d 772 (6th Cir. 2012); given fact that only after inquiring of front-desk
clerk at motel did government ascertain defendants specific room number in
order to arrest him, GPS tracking provided no greater insight into
defendants whereabouts than what defendant exposed to public view as he
traveled along public thoroughfares to hotel lobby; under Skinner,
defendant has no reasonable expectation of privacy against such tracking,
and, as such, district court properly denied defendants motion to suppress
evidence against him. United States v. Riley, 6/5/17, per curiam,
concurrence by Boggs, 17 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0118p-06.pdf
COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When truck driver suffered second


degree burns to his right hand and left thumb when scalded by hot liquid
while removing radiator cap of overheated truck, driver will likely prevail at
hearing on merits in establishing that he was employee of D & N
Transportation, Inc. (D & N) when D & N provided driver with truck he was
driving and load he was delivering on date of injury; once coverage attaches,
employer may not negate its liability to pay workers compensation benefits
by simply reducing its workforce below five regular employees; driver
meets criteria to qualify as eligible employee under TCA 50-6-801 et seq.,
thereby giving Bureau of Workers Compensation discretion to pay limited
temporary disability and medical benefits from Uninsured Employers Fund.
Ice v. Dave, 3/22/17, Chattanooga, Wyatt, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1762&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