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TAM-BYTES

September 4, 2017
Vol. 20, No. 36

TAM Webinars

How to Identify and Resolve Real Property Title Issues in Tennessee,


60-minute webinar presented by Ralph Al Owen Frazier, Jr., with Old
Republic National Title Insurance Company in Nashville, on Tuesday,
October 17, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/title-exams-101717
or call (800) 727-5257.

The Tennessee Attorneys Gun Laws Update: Where, When, and How
Clients Can Possess Firearms, 60-minute webinar presented by Dana
McLendon, with McLendon & Milligan in Franklin, on Thursday, October
19, at 10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/gun-101917
or call (800) 727-5257

Federal Trade Secrets Act: Your Weapon of Choice in Intellectual


Property Cases?, 60-minute webinar presented by David Lucas, with
Bradley Arant Boult Cummings in Huntsville, AL, on Wednesday, October
25, at 10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/trade-secret-102517
or call (800) 727-5257

On-Site Events
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; 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

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


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District;
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; 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.

Law Conference for Tennessee Practitioners


WHEN: THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor


Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

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/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)
*Take $50 off until October 13 (early bird discount)*

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

Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)
*Take $50 off until November 3 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Supreme Court, in issue of first impression, holds that decedents right


of action passes to surviving spouse upon decedents death, and
surviving spouse is not acting as legal representative of decedent in
filing wrongful death action, and hence, rules that surviving spouses
initial pro se complaint was not void ab initio and served to toll
statute of limitation;
Supreme Court clarifies that all disciplinary hearings are open to
public unless subject to protective order;
Workers Comp Appeals Board, in context of regulation addressing
expedited hearings, says accompanied by contemplates that
supporting documentation is to be filed in association with request for
hearing and does not necessarily require documentation to be filed
concurrently or contemporaneously with request for hearing;
Court of Appeals, in split decision, affirms summary judgment in
favor of defendants in suit by plaintiff who slipped and fell in pool of
liquid in concourse area during concert held at public venue;
Court of Appeals, in tort action against employer, rules workers
compensation was not exclusive remedy when masked and armed
robber knocked on locked door in restaurant and, after gaining entry,
restraining employee, and taking money from safe, raped employee,
hospitality manager;
Court of Appeals affirms trial courts determination that two children
were dependent and neglected based on finding of severe child abuse
due to their exposure to methamphetamine;
Court of Appeals rules trial court had jurisdiction to make finding as
to whether it was in childs best interest to be returned to his home
country of Guatemala;
Court of Criminal Appeals rules conduct of officers in knocking on
front door for 10 to 15 minutes while announcing their badge of
authority rendered encounter with one defendant non-consensual and
knock and talk investigation unlawful; and
Court of Criminal Appeals says that when determining whether
officers possessed reasonable suspicion to support traffic stop, courts
should consider collective knowledge that law enforcement
possessed at time of arrest, provided that sufficient nexus of
communication existed between arresting officer and any other
officer(s) who possessed relevant information.

SUPREME COURT

TORTS: Under plain language of Tennessees wrongful death statutes,


decedents right of action passes to surviving spouse upon decedents death,
and surviving spouse is not acting as legal representative of decedent in filing
wrongful death action; in filing pro se complaint, decedents surviving spouse
was acting to large extent on his own behalf and for his own benefit, pursuant to
his right of self-representation; initial pro se complaint was not void ab initio, it
served to toll statute of limitation, and trial court did not err in allowing filing of
amended complaint to relate back to date of initial complaint. Beard v.
Branson, 8/30/17, Nashville, Kirby, unanimous, 23 pages.
http://www.tncourts.gov/sites/default/files/beardlindaopn.pdf

PROFESSION OF LAW: Supreme Court Rule 9, Section 27 is amended to


provide that all disciplinary hearings are open to public unless subject to
protective order. In re Petition to Amend Supreme Court Rule 9, Section
32, 8/30/17, Nashville, 2 pages.
http://www.tba.org/sites/default/files/comment_order_-_sct_rule_7_-_adm2017-01659.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence supported trial courts


judgment that employee, mechanics helper, was permanently and totally
disabled when employee suffered herniated disc at L4-5 in 3/12, which
required surgery in 10/12, although employee returned to work for
employer, he continued to report pain and related symptoms to Dr.
Stonecipher through 2013, employee was treated with nerve block and
medication in 8/13, he was placed in body cast to ascertain whether spinal
fusion would be effective, despite these measures, Stonecipher found that
employee was no longer able to work, Dr. Dalal, who conducted
independent evaluation, found employee suffered from pain in his back,
radiating pain in his left leg, numbness, and tingling, employee also had
severe muscle spasms in his back and atrophy in his left leg, such that Dalal
was unaware of any jobs that employee could perform, and employee
testified that he is no longer able to walk for exercise, that he cannot work,
that he takes pain medication and muscle relaxers and that he had no other
vocational skills or training; evidence supported trial courts determination
that employer is liable for 90% of employees benefits resulting from the
most recent injury alone when employee performed all of his duties with no
restrictions and with no assistance prior to being injured in 3/12, and
although Stonecipher assigned impairment ratings after employees injuries
in 2007 and 2008, he explained that those injuries were to L5-S1 and that
employee returned to work with no restrictions. Gibson v. Southwest
Tennessee Electric Membership Corp., 8/28/17, Jackson, Acree, 12 pages.
http://www.tncourts.gov/sites/default/files/gibsonopn_0.pdf

WORKERS COMPENSATION: When employee, truck driver, sustained


work-related injury on 12/2/13 while performing maintenance on brakes of
truck and when employee notified employer of his injury on 12/16/13, even
though there was 14-day delay between time of injury and time that notice
was given to employer, this delay was reasonable given employees belief
that manager was on vacation week of injury and employees trip to
Delaware with co-worker to pick up equipment, from which he returned on
Saturday, 12/14/13; evidence did not preponderate against trial courts
determination that employees injury arose out of and in course of
employment when trial court credited Dr. Dalals testimony that employees
work-related injury aggravated employees pre-existing condition; trial court
did not err by finding that employee was not estopped from claiming
permanent partial disability benefits because he certified on Department of
Transportation document that he had no impairment of leg, no spinal injury
or disease, no chronic low back pain, and was physically capable of working
as truck driver; trial court did not err in finding that employees permanent
partial disability award was not limited to 1.5 times medical impairment
rating when trial court accredited employees testimony that he expressed
reservations about working night shift but that he never refused assignment
over testimony of manager that employee was terminated because he refused
to accept night shift assignment before employee gave notice of his injury;
award of 72% permanent disability is reduced to 36% when employee was
working full time as supervisor at job site and was required to walk and
stand lot and when he was able to engage in such activities as riding
motorcycle. Phillips v. Pictsweet Co., 8/28/17, Jackson, Acree, 21 pages.
http://www.tncourts.gov/sites/default/files/phillpsopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against


trial courts finding that employee was entitled to reconsideration of his
settlement of 2012 claim when employee had been unemployed since 2/7/14
as result of 1/14 work incident, his authorized physician had restricted him
from driving commercial truck as of 2/11/14 and that restriction was still in
place as of 5/14 when employee and employers president met, because of
dispute between two insurance carriers, employee was not receiving
temporary disability benefits, he needed money to pay his regular living
expenses, purpose of his meeting was to ask president if there was any work
available, president was unequivocal that only work available was driving
truck, and after this conversation employee elected to resign and request his
escrow money; under circumstances, employees decision to resign was
reasonably related to his workplace injury, and employee did not have
meaningful return to work. Tucker v. Tree & Shrub Trucking Inc., 8/29/17,
Nashville, Davies, 8 pages.
http://www.tncourts.gov/sites/default/files/tucker.v.treedshrub.opn_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee filed Request for


Expedited Hearing on 60th day following issuance of Dispute Certification
Notice (DCN) by mediator, neither affidavit nor other supporting
documentation was filed until following business day, employer objected to
Request for Expedited Hearing, contending Rule 0800-02-21-.12(1) and
0800-02-21-.14(1)(a) required request for hearing to be dismissed and case
to be placed on dismissal docket for show cause hearing, in context of
regulation addressing expedited hearings, accompanied by contemplates
that supporting documentation is to be filed in association with request for
hearing and does not necessarily require documentation to be filed
concurrently or contemporaneously with request for hearing; while trial
court should have discretion to determine whether to entertain request for
hearing when supporting documentation is filed separately and more than 60
days following issuance of DCN, plain language of regulation requiring that
request for hearing must be accompanied by supporting documentation
cannot be ignored; although TRCP 11 requires that every pleading or other
paper shall be signed by at least one attorney of record, only signature
required on Bureau of Workers Compensation form for requesting
expedited hearing is within certificate of service; employer has not alleged
or shown prejudice as result of employees failure to sign certificate of
service or to provide agreed-upon dates and times that parties were available
to appear for evidentiary hearing; while parties are encouraged to comply
with instructions on Bureau of Workers Compensation forms, such
instructions do not have force and effect of law, and technical deficiencies in
completing form in this case do not mandate result urged by employer.
Smith v. La-Z-Boy Inc., 8/31/17, Hensley, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1898&context=utk_workerscomp

COURT OF APPEALS

TORTS: Trial court properly granted defendants summary judgment in suit


by plaintiff who slipped and fell in pool of liquid in concourse area during
concert at public venue; plaintiff presented no evidence that wet spills in
area where she fell occurred with such regularity that dangerous condition
was reasonably foreseeable to defendants, and, as such, plaintiff provided
insufficient evidence at summary judgment stage to create genuine issue of
material fact as to issue of constructive notice. Katz v. Sports Authority of
Metropolitan Government of Nashville, 8/29/17, Nashville, McBrayer,
dissent by Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/katz.wanda_.opn_.pdf
http://www.tncourts.gov/sites/default/files/katz.wanda_.separate_opn.pdf

TORTS: When plaintiff, hospitality manager at restaurant, was in office


performing closing procedures with door to office locked, plaintiff answered
knock at door, masked man entered brandishing gun, man directed plaintiff
to sit in chair, where he put tape on her face and asked for code to safe, man
opened safe and took money, he then instructed plaintiff to move to another
chair, where he tied her arms to sides of chair, tied her legs, put more tape on
her face, put money from safe into bag, and returned and raped plaintiff,
man was later determined to be employee of restaurant, plaintiff filed tort
action against employer, and employer moved for summary judgment,
contending that workers compensation law provided exclusive remedy, trial
court did not err in denying motion; sexual assault was not risk inherent in
plaintiffs employment or condition under which her work was required to
be performed, and there is not sufficient nexus or causal connection between
injuries arising from sexual assault and nature of plaintiffs employment to
conclude that injury arose out of her employment. Doe v. P.F. Changs
China Bistro Inc., 8/29/17, Jackson, Dinkins, 9 pages.
http://www.tncourts.gov/sites/default/files/doejaneopn.pdf

COMMERCIAL LAW: When class action suit was filed against


defendant, surplus line insurance company that makes specialty insurance
products available to independent agents, alleging that defendant sent
unsolicited fax messages to recipients in violation of Telephone Consumer
Privacy Act (TCPA), complaint sought statutory damages of $500 per
violation, trial court granted summary judgment in favor of plaintiffs, and
insurer, which issued Customizer Business Insurance Policy to defendant,
filed suit seeking declaration of its responsibility to defend defendant in
underlying suit and what coverage was triggered under policy, policy states
that insurer will pay on behalf of persons insured all sums which they
become legally obliged to pay as damages arising out of an accidental event,
personal injury or advertising injury that occurs while this policy is in
effect, defendants act of sending faxes was intended injury, as set
forth in underlying suit, as loss of paper and toner is expected result of
transmission of fax, and hence, defendants action of sending faxes does not
fall within definition of accident as set forth in policy; defendant argued
that because it did not intend for sent faxes to injure recipients, coverage was
not precluded under accidental event coverage, but defendant failed to put
forth any evidence establishing material question of fact to support this
argument. Allstate Insurance Co. v. Kaigler & Associates Inc., 8/31/17,
Nashville, Dinkins, 9 pages.
http://www.tncourts.gov/sites/default/files/allstateinsurancev.kaigler.opn_.pdf

FAMILY LAW: Evidence supported termination of fathers parental rights


to his 2-year-old daughter on ground of abandonment by willful failure to
visit when fathers conduct during four-month period preceding filing of
termination petition did not indicate that father was actively trying to
maintain visitation with child; Tennessee courts have previously upheld
termination of parents parental rights based on abandonment for willful
failure to visit when parent was required to accomplish certain steps or
requirements in order to re-establish visitation with child and declined to do
so; parents failure to visit can be willful even though parent was required to
pay fee to visit his or her child at private facility responsible for supervising
visits. In re Savanna C., 8/31/17, Knoxville, Frierson, 23 pages.
http://www.tncourts.gov/sites/default/files/in_re__savanna_c.pdf

FAMILY LAW: Evidence supported trial courts determination that two


children were dependent and neglected based on finding of severe child
abuse due to their exposure to methamphetamine, and whether or not mother
exposed children to drugs or she allowed her mother or someone else to
expose children, as trial court found, she failed to protect children from
exposure to drugs; it is not level of drugs in childs system that is important
with regard to finding of severe child abuse, it is fact that children were
exposed to drugs it is exposure of child to harm that matters, not method or
level of exposure; mothers claim that there was no expert opinion is not
relevant to finding of severe child abuse. In re A.L.H., 8/31/17, Nashville,
Susano, 9 pages.
http://www.tncourts.gov/sites/default/files/inrea.l.h.opn_.pdf

FAMILY LAW: Mere dissatisfaction is not ground for kind of


extraordinary relief permitted under TRCP 60.02, and as such, father is
bound by terms of marital dissolution agreement (MDA) he signed,
including his alimony obligation; evidence preponderated in favor of trial
courts modification of parties parenting plan to require father to pay childs
educational expenses when trial court found that equal division of tuition
and extracurricular activities was fair at entry of divorce, even though father
was making substantially more than mother at that time, and trial court
determined that such division was still fair even though mothers financial
situation had considerably improved; trial courts decision to recalculate
fathers child support obligation because only one child is now below age of
majority and ordering father to pay one-half of one childs tuition as upward
deviation is both consistent with parties original agreement and evidence
presented at trial; trial court did not err by ordering father to comply with his
obligation under MDA to properly resolve flooding problem at marital
residence by paying mother $12,710 evidence at trial reflected it would cost
to accomplish this. Wagoner-Angelin v. Angelin, 8/29/17, Knoxville,
Swiney, 19 pages.
http://www.tncourts.gov/sites/default/files/mary_wagoner-angelin_v._randall_jon_angelin_opinion.pdf

FAMILY LAW: Trial court had jurisdiction to make finding as to whether


it was in childs best interest to be returned to his home country of
Guatemala; state court has jurisdiction to make findings pursuant to 8 USC
1101(a)(27)(J) in order to allow child to apply for special immigrant juvenile
status. In re Domingo C.L., 8/30/17, Nashville, Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/inre.domingoc.l.opn_.pdf

CIVIL PROCEDURE: Without finding of evasion of process, substitute


service of process was improper; defendants did not waive affirmative
defense of insufficient service of process by filing their answers more than
30 days after complaint was filed, by filing notice of appearance, or by
participating in litigation. Krogman v. Goodall, 8/29/17, Nashville,
McClarty, 15 pages.
http://www.tncourts.gov/sites/default/files/krogman.lisa_.opn_.pdf

CIVIL PROCEDURE: In second appeal involving attempted forfeiture of


walking horses that had allegedly been victims of animal abuse, because
appellees are owners of horses as defined by TCA 39-11-702(3), they
have standing to contest forfeiture; TCA 39-14-202 offers no support for
forfeiture of animal in civil court, instead, it is simply element of pending
criminal matter; when state filed in rem civil forfeiture action after seizing
subject horses in effort to forfeit appellees interests in their property,
because appellees were not convicted of crime under TCA 39-14-202 and
forfeiture therefore could not have been imposed by court exacting sentence,
TCA 39-14-202(e) is inapplicable; because forfeiture did not involve
appellees failure to pay court-ordered security and did not take place in
pending criminal matter, TCA 39-14-202(g) is likewise inapplicable;
because state failed to establish that horses were subject to forfeiture
pursuant to Tennessee law or that state complied with procedural
requirements of forfeiture statutes, trial courts ruling that horses should be
returned to appellees is affirmed. In re Tennessee Walking Horse
Forfeiture Litigation, 8/31/17, Jackson, Stafford, 20 pages.
http://www.tncourts.gov/sites/default/files/tennesseewalkinghorseopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In drug case involving three defendants, trial


court properly granted defendants motions to suppress evidence obtained as
result of search of their residence when, although trial court erred by using
subjective rather than objective test in finding that exigent circumstances
were not sufficient to justify officers entering residence to perform
protective sweep, conduct of officers in knocking on front door for 10 to 15
minutes while announcing their badge of authority rendered encounter with
one defendant (Hilliard) non-consensual and knock and talk investigation
unlawful; subsequent warrantless entry of residence by officers violated
prohibition against unreasonable searches and seizures under Fourth
Amendment and Tenn. Const. Art. I, Sec. 7 no reasonable person would
have believed that they were free to ignore officers prolonged and persistent
knocking while announcing their badge of authority; subsequent consent to
search given by Hilliard was not voluntary and resulted from exploitation of
prior illegality. State v. Hilliard, 8/29/17, Knoxville, Holloway, 19 pages.
http://www.tncourts.gov/sites/default/files/hilliard_opinion.pdf
CRIMINAL PROCEDURE: When determining whether law enforcement
officers possessed reasonable suspicion to support traffic stop, courts should
consider collective knowledge that law enforcement possessed at time of
arrest, provided that sufficient nexus of communication existed between
arresting officer and any other officer(s) who possessed relevant information
such nexus exists when officers are relaying information or when one
officer directs another officer to act; in case in which defendant pled guilty
to possession of more than 10 pounds of marijuana, because detective had
reasonable suspicion that defendant possessed marijuana and then directed
officer to act by stopping defendant, sufficient nexus existed such that
detectives reasonable suspicion was imputed to officer; information
detective provided to officer provided reasonable suspicion to stop defendant
for speeding, and no constitutional violation exists if there is valid reason for
traffic stop, even if officers have other motives in effecting stop. State v.
Kelley, 8/28/17, Nashville, McMullen, 21 pages.
http://www.tncourts.gov/sites/default/files/kelley_robert_lamaropn.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: In drug case, district court properly denied


defendants motion to suppress evidence seized from his home when affidavit
provided substantial basis to support finding of probable cause and issuance
of search warrant officer attested to reliability of his confidential informant
by noting that informant had provided useful tips over preceding eight
months, that informant was experienced in illegal drug trade and could
reliably identify controlled substances, that informant had seen large amounts
of crack cocaine at defendants residence less than hour before meeting with
officer, and that officer had corroborated some of this information by driving
by defendants home; mistaken address in affidavit did not invalidate search
warrant when officer provided ample detail to identify defendants residence,
even attaching photographs of residence to affidavit; fact that source had
recently seen defendant with firearm and fact that defendant had criminal
history that included guns and violence was more than enough to support
reasonable suspicion necessary to justify no-knock warrant. United States
v. Jones, 8/29/17, Thapar, 6 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0502n-06.pdf
TRIAL COURTS

CIVIL PROCEDURE: In this discovery dispute in which defendant filed


motion to compel responses to first request for production of documents,
absence of internal communications, and internal financial information of
plaintiffs production of documents to date is counter-intuitive, plaintiffs
assertions of privilege are not well founded, and format of plaintiffs
production is not reasonably useable as required by TRCP 34.01; electronic
documents must be produced in way that makes them searchable by
electronic means in order to satisfy useable format requirements of TRCP
34.01. Covenant Dove LLC v. Pharmerica Corp., 6/16/17, Davidson
Chancery, Lyle, 7 pages.
https://www.tncourts.gov/node/4870442

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, pest control


technician, stepped down onto his left foot while descending stairs while
carrying canister of pesticide at cabin where he was providing pest control
services, felt rush of pain in his left knee, and heard pop, there was no
evidence stairs were defective, employee did not slip, trip, or fall, although
in days leading up to work incident, employee suffered gout in his left knee,
he denied any other prior problems with his left knee, and he further denied
receiving orthopedic treatment for his left knee or receiving diagnosis of left
knee tear prior to work incident, employee is not likely to prevail at hearing
on merits in establishing that condition or hazard incident to his employment
caused or exacerbated his injuries. Soles v. Kirklands Pest Control,
6/23/17, Knoxville, Johnson, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1843&context=utk_workerscomp

WORKERS COMPENSATION: List of panel of physicians was


insufficient to entitle Dr. Rungee, doctor whom employee selected, to
presumption of correctness established in TCA 50-6-102(14)(E), when
employee lived in Murfreesboro, list of orthopedic specialists provided by
employer included one Murfreesboro doctor, Rungee, other specialists on
list practice in Winchester and McMinnville, which are each approximately
50 miles from Murfreesboro, these options do not constitute physician
practicing in the injured employees community, and employer presented
no evidence that insufficient number of doctors was available in
Murfreesboro or its immediate vicinity; Rungees causation opinion that
his final diagnosis was left knee strain with asymptomatic degenerative
medial meniscus tear, and that because employee never had any medial
symptoms, medial meniscus tear must have pre-existed work accident is
more persuasive than that of Dr. Neely when Neely did not dispute Rungees
conclusion, admitted that he had no reason to doubt it, and acknowledged
that none of Rungees examinations indicated acute medial meniscal tear.
Baumgardner v. UPS, 6/28/17, Murfreesboro, Tipps, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1845&context=utk_workerscomp

WORKERS COMPENSATION: Employee appears unlikely to prevail at


hearing on merits that his back condition and inguinal hernia arose primarily
out of his two work accidents; employee would have difficulty establishing
that his accidents caused hernia or rupture when doctor, only physician to
ascribe hernia to employees falls, testified there was no one cause for hernia
but that repetitive lifting weakened abdominal wall and hernia was
precipitated by fall, and when there was no evidence that hernia appeared
suddenly or immediately following accidents, as employee admitted that he
was unaware of it until his attorney advised him of MRI results, many months
later. Halbert v. Nestle Holdings Inc., 6/9/17, Murfreesboro, Tipps, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1838&context=utk_workerscomp

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