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TAM-BYTES

July 24, 2017


Vol. 20, No. 30

TAM Webinars

Trump and Immigration: The Essential Attorney Update, 60-minute


webinar presented by Terry Olsen, with Olsen Law Firm in Chattanooga,
on Wednesday, August 23, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-082317
or call us at (800) 727-5257.

Proving Damages in Tennessee: How to Present Evidence and


Command Jury Attention, 60-minute webinar presented by John
Dunlap, Memphis attorney, on Thursday, August 24, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-082417
or call us at (800) 727-5257.

Divorce in Tennessee: Essential First Steps for Attorneys, 60-


minute webinar presented by Kevin Shepherd, with Shepherd and
Associates PC in Maryville, on Thursday, August 31, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/divorce-083117
or call us at (800) 727-5257.

Helping Clients Market and Collect Via Telephone: TCPA Update


for Attorneys, 60-minute webinar presented by David Esquivel &
Elaina Al-Nimri, with Bass, Berry & Sims in Nashville, on Thursday,
September 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/tcpa-090717
or call us at (800) 727-5257.
On-Site Events
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.


11th annual
Tennessee Workers Comp Conference
WHEN: WEDNESDAY, THURSDAY & FRIDAY, NOVEMBER 8-10
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge


Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
WORKERS COMPENSATION: Troy Haley. WORKERS COMP/EMPLOYMENT
LAW ATTORNEYS: Mary Dee Allen, Wimberly Lawson Wright Daves & Jones PLLC;
Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Leslie Bishop, Lewis,
Thomason, King, Krieg, & Waldrop, P.C.; Kitty Boyte, Constangy, Brooks, Smith &
Prophete, LLP; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims


and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)
*Take $50 off of full program until October 13 (early bird discount)*

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


IN THIS WEEKS TAM-Bytes

Workers Comp Panel rules employees fear of losing his job was not
reasonable excuse for failing to give timely notice of injury;
Court of Appeals grants summary judgment to defendant in case in
which defendant was driving his vehicle with passenger (co-worker
plaintiff) as part of carpool arrangement when they were involved in
accident, and plaintiff was injured, received workers compensation
benefits, and then filed negligence suit against defendant; and
Court of Criminal Appeals rejects vagueness constitutional challenge
to failure to appear statute.

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee, firefighter for city, felt


pop in his lower back and felt pain radiate down his leg when he grabbed
his air pack on 5/18/11, first notice employee filed with city clerk stating
that he injured his back was on 9/27/11, and trial court found that
employees notice approximately four months after his alleged injury failed
to satisfy requirements of TCA 50-6-201, employer did not have actual
knowledge of employees back injury when even if employer was aware of
employees back pain, nothing in record indicates that employer knew
employee injured his back during course and scope of his employment or
that back pain was related to such injury; failure to give timely notice was
not excused by delay in diagnosis when employee suggests that he did not
give notice of his injury within 30 days because he was initially unsure
whether he had strained muscle or was suffering from kidney stone, but
employee knew in 6/11 that he had herniated discs and did not inform
employer that herniated discs could be work related; employees fear of
losing his job was not reasonable excuse for failing to give timely notice.
Beck v. City of Brownsville, 7/18/17, Jackson, Acree, 10 pages.
http://www.tncourts.gov/sites/default/files/beckopn.pdf

COURT OF APPEALS

TORTS: When defendant was driving his vehicle with passenger (co-
worker plaintiff) as part of carpool arrangement when they were involved in
accident, plaintiff claimed he was entitled to and received workers
compensation benefits, and plaintiff then filed tort suit against defendant
personally, trial court properly granted defendant summary judgment;
having chosen to receive his workers compensation benefits under workers
compensation statutes, plaintiff is subject to restrictions placed on him under
those same statutes; whether barred by species of estoppel, or under
exclusive remedy provision of TCA 50-6-108(a), plaintiff is limited
exclusively to his recovery in workers compensation and may not bring this
common law negligence claim against his co-worker for same incident.
Williams v. Buraczynski, 7/19/17, Knoxville, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/williams_v._buraczynski.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


designation of father as primary custodian of parties children when mother
had unilaterally restricted fathers parenting time in past, and trial court
expressed concern over mothers emotional stability, noting that evidence
suggested she was highly emotionally volatile, in contrast to fathers
calm, rational, organized, and clear demeanor. Pack v. Rothchild, 7/21/17,
Knoxville, Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/pack_coa_opinion.pdf

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


parenting plan seeking to be named primary residential parent of parties
child, evidence preponderated against trial courts finding that fathers
evidence was insufficient to establish material change in circumstances
when trial courts assessment inferred subsequent improvement in mothers
stability that was not reflected in record mother was married and was
working and living at ranch when initial parenting plan was entered in 6/14,
mother and her husband separated sometime around 2/15, ranch where
mother had been working and living for three years was sold by its owners,
mother briefly moved in with her mother, but that arrangement was short-
lived, and mother moved out following alteration with her mother that
resulted in mothers arrest, mother moved several more times, and at time of
trial, she was receiving treatment for depression and did not have steady job;
while fleeting period of hardship may not rise to level of material change in
circumstance, it is difficult to make that determination without evidence that
period of hardship is, in fact, fleeting; because trial court dismissed fathers
petition without hearing mothers evidence, it is unclear whether mothers
living arrangement at time of hearing was permanent or merely latest in
ongoing series of moves; trial courts dismissal of fathers petition to modify
permanent parenting plan is reversed, and case is remanded to trial court so
that mother may present her evidence in attempt to demonstrate that changed
circumstances in her life were only temporary and do not warrant such
modification. In re Jonathan S., Jr., 7/24/17, Nashville, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/inrejonathans.opn_.pdf

COURT OF CRIMINAL APPEALS

CONSTITUTIONAL LAW: In case in which defendant was convicted of


failure to appear pursuant to TCA 39-16-609, statute is not
unconstitutionally vague due to its failure to define terms failure to appear,
appearance, or lawful authority given fact that those are familiar terms
capable of ready understanding by person of ordinary intelligence; statute
did not fail to place defendant on notice that her conduct would violate
statute; statements that are properly categorized as business records are non-
testimonial, and Confrontation Clause has no application to their admission
into evidence. State v. Chick, 7/17/17, Nashville, Witt, 12 pages.
http://www.tncourts.gov/sites/default/files/reno_paul_averyopn.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to


statutory rape, trial judge, in denying defendant judicial diversion, erred by
placing weight on circumstances of victims conception of child with
defendant as indicative of defendants long history of criminal conduct,
trial court improperly relied upon defendants non-traditional relationships
and on its disapproval of defendants lifestyle, i.e., defendants previous
romantic relationships with younger women and fact that he had fathered
multiple children with multiple women, and trial court erred in relying on
defendants probability to re-offend in future when no evidence was
introduced showing that defendant was likely to re-offend; although trial
court properly considered fact that defendant pled guilty to lesser included
offense (statutory rape) of indicted offense (aggravated statutory rape), age
gap between defendant and victim alone does not make circumstances of
offense especially horrendous or shocking, and no evidence of lasting harm
to victim was presented; case is remanded for new sentencing hearing to
determined defendants suitability for diversion or alternative sentencing and
whether defendant should be required to register as sex offender. State v.
Reno, 7/18/17, Nashville, Montgomery, 22 pages.
http://www.tncourts.gov/sites/default/files/chick_annaopn.pdf
SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: In case in which defendant pled guilty to


conspiring to possess narcotics with intent to distribute, search warrant for
defendants apartment was supported by probable cause, and even though
activities indicating drug sales were observed over seven weeks before
issuance of search warrant, evidence was not stale; even though activities
were not individually dated, amount of suspicious activity observed within
seven weeks in connection with defendants apartment was enough to
support probable cause for issuance of warrant. United States v. Perry,
7/19/17, Rogers, 5 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0155p-06.pdf

CRIMINAL PROCEDURE: In case in which defendant sought writ of


habeas corpus, arguing that police violated his Fifth Amendment rights when
they denied his request for attorney while being questioned at police station
defendant was questioned over four hours before police informed him of
his Miranda rights state courts ruling was objectively reasonable in
finding that defendant was not in custody for Miranda purposes so police
were not required to provide defendant with attorney or cease questioning
him when statements defendant made during questioning show that he was
not suspect during interrogation, murder had occurred eight years prior and
defendant had never been questioned, police officers began discussion by
indicating that they believed that bicycle bandit had committed murder,
officers never browbeat defendant, but instead were all ears during
discussion, and at conclusion of discussion, defendant was not arrested for
his role in murder, but was released back to county jail same jail in which
he had been incarcerated prior to questioning and he was not arrested for
murder until approximately three years later. Schreane v. Ebbert, 7/20/17,
Siler, concurrence by Clay, 12 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0159p-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When, while installing drywall at


Netos Drywall jobsite, employee fell from ladder, injuring his head and
right side, employee came forward with sufficient evidence demonstrating
he is likely to prevail at hearing on merits in establishing he was employee
of Netos Drywall when Netos Drywall determined scope of work and work
schedule, employee did not have right of termination or freedom to select
and hire helpers, Netos Drywall paid employee in cash but did not provide
tools for work, and there was no freedom to offer services to other entities;
although Netos Drywall must provide employee with past and ongoing
medical benefits, it is unclear whether payment will be forthcoming since
Netos Drywall did not have workers compensation insurance on date of
injury and it has not participated in litigation of this claim, but employee
failed to come forward with sufficient evidence demonstrating he is likely to
prevail at hearing on merits in satisfying notice requirement of TCA 50-6-
801(d)(4), and hence, employee is not eligible to receive medical benefits
from Uninsured Employers Fund (Fund) at this time; this order does not
prohibit employee from filing new expedited hearing should he wish to
submit additional documentation or evidence establishing notice requirement
for eligibility of benefits from Fund. Galindo v. Netos Drywall LLC,
5/10/17, Kingsport, Johnson, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1799&context=utk_workerscomp

WORKERS COMPENSATION: When employee and co-worker loaded


large box onto forklift, co-worker operated forklift and lifted box, but rather
than going onto rack, box stuck, co-worker turned off forklift and employee
climbed on fender of forklift to push box onto rack, as employee removed
his foot from fender, co-worker started forklift, employee lost his balance
and reached his gloved left hand out to balance himself, his hand landed on
side of forklift mast, chains on mast pulled employees hand into them,
injuring two fingers, and employer contended that employee willfully
violated safety rule, employer failed to establish by preponderance of
evidence that it had safety rule against climbing on forklift and/or using
forklift as ladder; it would be virtually impossible for employer to create
specific safety rule to cover any and all instances, but, in order for employer
to escape liability for otherwise compensable claim, employer must have
specific rule in place and show that, despite employees knowledge of rule,
he or she violated rule. Alvarez v. Surface Igniter LLC, 5/15/17, Knoxville,
Lowe, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1800&context=utk_workerscomp

WORKERS COMPENSATION: When NVR, general contractor, entered


into Master Vendor Agreement with Rite Rug in 2011 to provide materials
and services in connection with NVRs homebuilding and other operations,
agreement required Rite Rug as vendor to maintain workers compensation
insurance, Rite Rug hired Mirage Construction as subcontractor for jobsite
where worker allegedly suffered work injury, there was no agreement in
place between it and NVR extending NVRs insurance coverage to Mirage,
and Mirage employed worker on alleged date of injury but denied having
valid workers comp insurance policy, worker may first look to immediate
employer, Mirage, to seek recovery, Mirage is uninsured, so worker next
looks to Rite Rug, Rite Rug hired Mirage as subcontractor and admits that
Rite Rug has workers comp coverage, and hence, worker need not look
higher up chain to general contractor for recovery. Morales v. Mirage
Construction, 5/16/17, Nashville, Switzer, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1803&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