TAM-BYTES January 28, 2013 Vol. 16, No.

4
2013 CLE CALENDAR

Audio Conferences
Tennessee Workers Compensation Update: Recent Cases and New Laws, 60minute webinar presented by Fred Baker, with Wimberly Lawson Wright Daves & Jones PLLC, on Wednesday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). New Tax Law in Tennessee: How State and Federal Changes Affect Estate Planning, 60-minute audio conference presented by Harlan Dodson, with Dodson, Parker, Behm & Capparella PC, on Thursday, February 28 at 10 a.m. (Central), 11 a.m. (Eastern). QDROs: Dividing Retirement Plans in Tennessee Divorces, 60-minute webinar presented by James D. Helton II, Brentwood attorney, on Thursday, February 28 at 2 p.m. (Central), 3 p.m. (Eastern). Technology Trends and Social Media: Court Decisions, Legal Implications, and More, 60-minute webinar presented by Chuck Young, in-house attorney for Babcock & Wilcox Technical Services Y-12 LLC in Oak Ridge, on Thursday, March 14 at 10 a.m. (Central), 11 a.m. (Eastern).

Onsite Event
Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal
For more information or to register for any of our CLE events, call (800) 274-6774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes * Supreme Court sets forth single competency standard, as enumerated in Supreme Court Rule 28, section 11, applicable to all phases of post-conviction proceeding; *Court of Appeals upholds surrogacy agreement in case in which unmarried Italian couple entered into surrogacy agreement with Tennessee surrogate in order to have child; * Court of Appeals, in case in which ex-wife filed claim against ex-husbands estate for child support arrearages, rules trial court abused discretion in taking judicial notice, from original divorce file, of fact that child support payments allegedly had been made, as asserted in widows answer and letter to clerk; * In drug case in which defendant was sentenced to effective term of six years to be served on probation, Court of Criminal Appeals says sentencing defendant in absence of presentence report is reversible error; and * U.S. District Court holds unconstitutional 2012 act that allowed six Shelby County municipalities to hold August referendums on new school systems.

SUPREME COURT CRIMINAL PROCEDURE: In case in which petitioner was convicted of seven counts of first degree murder in connection with deaths of seven fast food workers in three fast food restaurants and was sentenced to death, and after petitioner decided not to seek new trial in any of his cases, one of his sisters filed next friend petition requesting courts to declare petitioner incompetent, thereby enabling her to pursue post-conviction relief on his behalf, standards and procedures in Supreme Court Rule 28, section 11, should be used in all future post-conviction proceedings, including those currently awaiting decision, in which issue of petitioners competency is properly raised; petitioners sister failed to prove by clear and convincing evidence that petitioner lacked capacity to make rational decisions regarding pursuit of post-conviction relief. Reid ex rel. Martiniano v. State, 1/24/13, Nashville, Koch, unanimous, 48 pages.
http://www.tncourts.gov/sites/default/files/reidpdopn.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: In case in which employee was pinned between large crane and pickup truck and suffered injuries to his ribs, shoulder, and back, as well as collapsed lung and contusions on his lung, evidence did not preponderate against trial courts finding that employee sustained impairment of his pulmonary function; evidence did not preponderate against trial courts decision to give greater

weight to opinion of Dr. Dalal, who evaluated plaintiff at request of plaintiffs attorney, than to opinion of Dr. Wood, who became plaintiffs treating physician seven months after injury; trier of fact is not required to accept or reject in its entirety testimony of any particular expert witness. Sutton v. McKinney Drilling Co., 1/18/13, Jackson, Parish, 6 pages.
http://www.tncourts.gov/sites/default/files/suttoneopn.pdf

WORKERS COMPENSATION: When employees workers comp claim was settled in 7/03, settlement was approved by Department of Labor and Workforce Development, settlement provided that employer would continue to provide medical care for injury, employee and employers insurer entered into agreement closing future medical benefits in exchange for lump sum payment, subject to approval by Medicare, settlement closing future medical benefits was approved by Circuit Court for Knox County by agreement of parties, Medicare declined to approve proposed agreement and suggested alternate, much larger, lump sum payment, and employee filed petition in Circuit Court for Sullivan County to enforce settlement agreement as amended by Medicare, trial court erred in denying employers and insurers motion to dismiss based on improper venue; employees complaint sought to modify Knox County Circuit Court judgment by incorporating terms contained in letter from Centers for Medicare & Medicaid Services disapproving settlement and to enforce judgment as modified, and action to enforce judgment as modified must be filed in court where original judgment was entered. Draine v. S & ME Inc., 1/22/13, Knoxville, Daniel, 6 pages.
http://www.tncourts.gov/sites/default/files/drainemichaelopn.pdf

COURT OF APPEALS FAMILY LAW: In case in which unmarried couple (appellees), who reside in Italy, entered into surrogacy agreement with Tennessee surrogate (surrogate) in order to have child, surrogate became pregnant as result of artificial insemination with sperm of appellee father, prior to babys birth, appellees, surrogate, and surrogates husband filed joint petition in juvenile court to declare parentage and to ratify surrogacy agreement contract provided that neither surrogate nor surrogates husband desired to have parental relationship with any child born pursuant to contract juvenile court entered final order ratifying surrogacy agreement on 12/22/11, after child was born on 1/7/12, parties agreed that it would be in childs best interest for surrogate to nurse child for few days, on 1/13/12, surrogate filed motion for ex parte restraining order and injunction prohibiting child from international travel and for surrender of childs passport, juvenile court denied surrogates motion and ordered that physical custody of child be given to appellees, and on 1/13/12, surrogate also filed motion to alter or amend juvenile courts

12/22/11 order ratifying surrogacy agreement, arguing that there was no surrogate birth under Tennessee surrogacy statutes because intended parents, i.e., appellees, were not married, evidence did not preponderate against juvenile courts determination that surrogacy agreement was valid and that surrogate was not entitled to relief from final order ratifying surrogacy agreement. In re Baby, 1/22/13, MS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/inre_baby_opn.pdf

ESTATES & TRUSTS: In case in which parties divorced in 1975, wife was awarded custody of couples daughter, decedent was ordered to pay $90 per month in child support, decedent died in 7/10, wife filed claim against decedents estate for unpaid child support and interest in amount of $68,145, along with additional postjudgment interest and $200 attorneys fee, and decedents widow and personal representative of estate filed exception to wifes claim, trial court erred in denying wifes claim for child support arrearages; trial court abused discretion in taking judicial notice, from original divorce file, of fact that child support payments allegedly had been made, as asserted in widows answer and letter to clerk, when there was no other direct evidence in record demonstrating that child support payments had been made; taking judicial notice of these disputed allegations from prior, unresolved proceeding was improper; trial court erred in making assessments of wifes credibility based upon improper judicial notice after reviewing divorce file, trial court determined that wife was not credible witness; judgment of trial court is reversed, and case is remanded to another trial court judge for further proceedings. In re Estate of Miller, 1/22/13, ES, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/millerestateopn_1.pdf

GOVERNMENT: Residential addresses of employees of third-party contractors contained in certified payroll records submitted by contractors to Convention Center Authority of Metropolitan Government of Nashville are not exempt from disclosure under Tennessee Public Records Act (TPRA); determination of extent to which personal identifying information, including social security numbers and residential addresses, should be exempt from disclosure under TPRA as matter of public policy is one which must be left to General Assembly. Patterson v. Convention Center Authority of Metropolitan Government of Nashville, 1/17/13, WS at Nashville, Farmer, 19 pages.
http://www.tncourts.gov/sites/default/files/pattersonmartindopn.pdf

COURT OF CRIMINAL APPEALS EVIDENCE: In case in which defendant was indicted on charge of first degree premeditated murder and subsequently convicted of voluntary manslaughter, trial judge did not err in denying defendants motion for mistrial based upon TBI agents testimony about defendants anger management issues when testimony regarding defendants temper was not elicited by state defense counsels questioning elicited further testimony regarding defendants temper trial judge gave curative instructions promptly after defense counsels objection, and while states proof in case was not particularly strong, trial court did not abuse discretion in finding that jury could still reach impartial verdict and that continuing trial would not result in miscarriage of justice. State v. Rochelle, 1/25/13, Nashville, Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/rochellejlopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of six counts of aggravated statutory rape and one count of attempted aggravated statutory rape, indictment, which specified both month and year (although not specific date) for each offense, was not defective. State v. Harding, 1/25/13, Nashville, Thomas, 29 pages.
http://www.tncourts.gov/sites/default/files/hardinganthony2opn.pdf

CRIMINAL LAW: Criminal simulation and theft of property are not same offense for double jeopardy purposes, and hence, defendant was not subjected to multiple punishments for same offense; defendants convictions for both criminal simulation and theft did not violate double jeopardy. State v. Sayers, 1/24/13, Knoxville, Tipton, 11 pages.
http://www.tncourts.gov/sites/default/files/sayersericshavonnopna.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to introducing contraband into penal institution, possession with intent to deliver morphine, and possession with intent to deliver more than .5 gram of marijuana and was sentenced to effective term of six years to be served on probation, sentencing defendant in absence of presentence report is reversible error defendant was convicted of two Class C felonies and one Class E felony, but parties waived having presentence report prepared for trial courts judicial diversion determination; whether presentence report is prepared for trial courts sentencing determination or its granting or denial of judicial diversion, practice of failing to prepare and file report with trial court is not condoned; because trial court relied upon information not contained in record in denying defendants request for judicial diversion, case is remanded for new sentencing hearing. State v. Marshall, 1/23/13, Jackson, Tipton, 5 pages.
http://www.tncourts.gov/sites/default/files/marshallcynthiadeniseopn.pdf

U.S. DISTRICT COURTS GOVERNMENT: Although general in form, 2012 PC 905, which establishes criteria for creating municipal schools in Shelby County, i.e., referendum, is local in effect; because it does not include provision for local approval, PC 905 is void under Tenn. Const. Art. II, Sec. 9; municipalities are enjoined from proceeding under PC 905 to establish municipal school districts. Board of Education of Shelby County v. Memphis City Board of Education, 11/27/12, W.D.Tenn., Mays, 65 pages.

REVENUE RULINGS TAXATION: Applicability of Tennessee sales and use tax industrial machinery exemption in expansion of manufacturing facility. Department of Revenue Ruling 12-24, 10/31/12, 12 pages.
http://www.tn.gov/revenue/rulings/sales/12-24.pdf

TAXATION: Whether discount charged on trade accounts receivable arising in ordinary course of business from sale of companys products constitutes intangible expense for purposes of determining net earnings or loss under TCA 67-42006(b)(1)(K) through (b)(2))N). Department of Revenue Letter Ruling 12-32, 12/19/12, 4 pages.
http://www.tn.gov/revenue/rulings/fae/12-32fe.pdf

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/