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TAM-BYTES

September 11, 2017


Vol. 20, No. 37

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

Obtaining and Using Cell Phone Records in Tennessee, 60-minute


webinar presented by Russell Taber, with Riley, Warnock & Jacobson in
Nashville, on Thursday, November 2, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cell-110217
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

In case in which employee fell several feet while installing


insulation on two-story foyer of home, Workers Comp Appeals
Board rejects employers willful misconduct defense when
employer did not demonstrate consistent, bona fide enforcement of
the rule in question;
Court of Appeals, in affirming summary judgment to defendant doctor
in healthcare liability action, holds testimony of plaintiffs expert as to
causation did not establish, to reasonable degree of medical certainty,
that it was more likely than not that decedent would not have suffered
injury and death but for alleged negligent supervision by defendant of
physician assistant;
Court of Criminal Appeals finds that although exigent circumstances
did not justify warrantless search of defendants home, there was
probable cause for issuance of subsequent search warrant based on
officers testimony that he recognized smell of raw marijuana coming
from inside home;
Court of Criminal Appeals rules that trial court erred in revoking
defendants probation when it improperly admitted hearsay testimony
at revocation hearing, over defendants objections, without finding of
good cause or reliability; and
Davidson Chancery Court rules settlement agreement(s) resolving
federal court litigation between parties are discoverable under
Tennessee Rules of Civil Procedure.

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee suffered multiple


injuries when he fell several feet while installing insulation of two-story
foyer of home under construction, employer relied on willful misconduct
defense, in addition to arguing that employee failed to abide by safety
policies identified in its Safety Handbook, it asserted that employee failed to
use ladder as he had been counseled and argued these failures evidence
employees willful misconduct, employee had been injured in similar
manner during previous period of employment but was not disciplined for
violation and was subsequently rehired, and employee was not disciplined
following injury in question despite fact that employers general manager
testified that he had counseled employee on this very issue at time he was
rehired, employer did not demonstrate consistent, bona fide enforcement of
the rule in question, and hence, trial court properly determined that
employer failed to establish essential element of its affirmative defense.
Glasgow v. 31-W Insulation Co., 9/6/17, Hensley, 19 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1906&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1851&context=utk_workerscomp

COURT OF APPEALS

TORTS: When plaintiff filed healthcare liability action against defendant


doctor alleging that defendants supervision of physician assistant fell below
standard of care, which resulted in injury and death of plaintiffs mother,
defendant moved for summary judgment on basis that plaintiff had not
provided competent expert testimony regarding applicable standard of care
or causal link between defendants actions and subsequent injury and death
of decedent, trial court properly granted defendants motion due to plaintiffs
lack of expert testimony satisfying requirements of TCA 29-26-115;
testimony of plaintiffs expert as to causation did not establish, to reasonable
degree of medical certainty, that it is more likely than not that decedent
would not have suffered injury and death but for alleged negligent
supervision by defendant when expert faulted defendant for not ensuring that
Dr. Clemons, ear, nose, and throat (ENT) physician, arrived to assess
decedent, but expert was not able to say whether Clemons would have
performed any particular procedure that would have prevented decedents
hypoxic event, and when determination of if, when, and what kind of
procedure to perform would have been dependent on medical conclusions of
ENT and anesthesiologist involved, not defendant. Franklin-Mansuo v.
AMISUB (SFH) Inc., 9/6/17, Jackson, Gibson, 8 pages.
http://www.tncourts.gov/sites/default/files/franklin-mansuojordanopn.pdf

PROPERTY: TCA 29-18-129 governs both statutory and common law


writs in forcible entry and detainer actions; TCA 29-18-129 appears to
contemplate strict 30-day time limit for filing petition for writ of certiorari in
circuit court. Outloud! Inc. v. Dialysis Clinic Inc., 9/11/17, Nashville,
Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/outloud.opn_.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In murder case, trial judge properly admitted, as both dying


declaration and excited utterance, victims statement to his mother that
defendant shot him; although victim did not explicitly state that he believed
he was dying when he identified defendant as perpetrator, facts and
circumstances surrounding statement sufficiently established victims
awareness of his imminent death at time victim made statement, he had
suffered at least five gunshot wounds from rifle, victim told his mother that
he thought he was dying, and victim lost consciousness at one point and
statement was made during ongoing emergency. State v. Bailey, 9/5/17,
Knoxville, McMullen, 17 pages.
http://www.tncourts.gov/sites/default/files/washington_eric_aka_brock_erik_opn.pdf

CRIMINAL PROCEDURE: In drug case, search of defendants home by


law enforcement was lawful when, although exigent circumstances did not
justify warrantless search of defendants home, there was probable cause for
issuance of subsequent search warrant based on officers testimony that as
narcotics unit investigator with eight years experience, he recognized smell
of raw marijuana coming from inside defendants home; probable cause can
be based solely on officers detection of odor of marijuana; in reviewing
certified question of law, intermediate appellate court has only three options in
which to rule affirm judgment(s), reverse judgment(s) and dismiss charges,
or dismiss appeal. State v. Hodge, 9/8/17, Jackson, Woodall, 11 pages.
http://www.tncourts.gov/sites/default/files/hodge_billy_joe_opn.pdf

CRIMINAL SENTENCING: Trial court erred in revoking defendants


probation for his aggravated assault, domestic assault, and vandalism under
$500 convictions when trial court improperly admitted hearsay testimony
(officer testified about statements victim had made to him) at revocation
hearing, over defendants objections, without finding of good cause or
reliability; alleged victim was not present as witness, there was no explicit
statement that state had issued subpoena for victim at her last known
address, which was definitely known by state, and state failed to make
showing that information contained in victims statements was reliable.
State v. Washington, 9/5/17, Jackson, Woodall, 6 pages.
http://www.tncourts.gov/sites/default/files/kaylon_bailey_opinion.pdf

TRIAL COURTS

CIVIL PROCEDURE: Settlement agreement(s) resolving federal court


litigation between parties in two cases are discoverable under Tennessee
Rules of Civil Procedure and must be produced to plaintiffs under terms of
parties protective order; discovery of settlement agreement(s) resolving
federal court litigation is both relevant to subject matter involved in pending
action and reasonably calculated to lead to discovery of admissible evidence;
although no analogous Tennessee case could be located, federal law is
instructive. Florida Home Care Givers LLC v. Sitters Etc. Franchising
LLC, 6/20/17, Davidson Chancery, Lyle, 5 pages.
https://www.tncourts.gov/node/4870443

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:
www.tncourts.gov