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TAM-BYTES February 4, 2013 Vol. 16, No.

5
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 *Court of Appeals affirms trial courts ruling that gravamen of complaint alleging that patient fell off table while undergoing myocardial perfusion imaging sounded in medical malpractice, not ordinary negligence; *Court of Appeals says determination of whether ambulance attendant falls below standard of care by not locking stretcher in place in ambulance is matter that can be assessed on basis of common experience without need for expert medical testimony; * Court of Appeals, in suit against instructor of motorcycle safety course and his employer by plaintiff who drove off of designated course site and collided with parked pickup truck, upholds validity of waiver executed by plaintiff before starting safety course; *Court of Appeals affirms judgment against city in suit by motorist who was injured when padlock was hurled from beneath lawnmower operated by city employee and through window of plaintiffs vehicle; * Court of Appeals rules boom truck was not covered under auto insurance policy when it was being used as power crane at time of accident injuring subcontractors employee; * Court of Appeals, in issue of first impression, says amendment adopted by homeowners association restricting either leasing or occupancy of unit is binding on owners who purchased their units before amendment became effective; * Court of Appeals upholds trial courts denial of wifes request for retroactive child support, holding that it would be inappropriate to require husband to pay additional retroactive child support when husbands monthly payments on wifes vehicle exceeded his child support obligation by $39, and wife testified that she would have used husbands child support checks to make these car payments herself; * Court of Criminal Appeals holds that defendant invoked his right to remain silent prior to questioning when defendant, upon being asked by police officer if he wanted to waive his right to remain silent, answered na-ah and shook his head slightly to side; and * Court of Criminal Appeals holds trial court did not err in denying defendants motion for mistrial following bomb threat at beginning of trial when bomb threat, in and of itself, did not so taint jury as to create manifest necessity for declaration of mistrial.

SUPREME COURT PROFESSION OF LAW: Revised Rule 19 permits lawyer not licensed to practice law in Tennessee, licensed in another U.S. jurisdiction, and who resides outside Tennessee to appear pro hac vice, file pleadings, motions, briefs, and other pages and to fully participate in a contested case proceeding before a state department, commission, board, or agency, if lawyer complies with conditions set forth in Rule 19. In re Amendment to Supreme Court Rule 19, 2/4/13, Nashville, 6 pages.
https://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_19.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employee overcame presumption of correctness attached to impairment rating for right shoulder injury of physician selected through Medical Impairment Registry (MIR) when employee presented evidence, through testimony of evaluating physician, that MIR physician used incorrect method, MIR physician did not testify, and employer presented no other evidence to contradict evaluating physicians assertion; trial court erred in failing to award employee offset when contractual language of accident and sickness plan clearly and unequivocally expressed intention that injured employee was not to recover benefits from accident and sickness program if he also recovered benefits for same injury through workers compensation. Amado v. Bridgestone Firestone Americas Tire Operations LLC, 1/30/13, Nashville, Kurtz, 8 pages.
http://www.tncourts.gov/sites/default/files/amado_v_bridgestone_opnjo.pdf

CIVIL PROCEDURE: When employees widow filed suit on 5/12/10 for workers compensation death benefits alleging that employees 8/18/09 death occurred in course of his employment, order of voluntary dismissal was entered on 6/7/10, on same date, widow refilled suit, order of voluntary nonsuit was entered on 11/30/11, and widow filed third action on same date, trial court erred in granting employers motion to dismiss third suit; because second action was filed within original statute of limitation period, one-year saving statute period set forth in TCA 28-1-105 did not commence, saving statute commenced to run on date of second nonsuit, 11/30/11, and third action was timely filed (within one-year saving statute period). Paschall ex rel. Paschall v. SGS North America Inc., 1/30/13, Nashville, Kurtz, 6 pages.
http://www.tncourts.gov/sites/default/files/paschall_v_sgs_opnjo.pdf

COURT OF APPEALS TORTS: In suit against medical facility by patient who fell off table while she was undergoing myocardial perfusion imaging, also known as nuclear stress test, trial court did not err in ruling that gravamen of complaint sounded in medical malpractice and dismissing complaint when there was no compliance with requirements of medical malpractice statute. Williams-Ali v. Mountain States Health Alliance, 1/30/13, ES, McClarty, 11 pages.
http://www.tncourts.gov/sites/default/files/aliopn.pdf

TORTS: In case in which trial court ruled that injury to decedent occurred during ambulance ride from her home to hospital emergency room, no expert testimony was required because suit involved ordinary negligence, not medical malpractice;

determination of whether ambulance attendant falls below standard of care by not locking stretcher in place in ambulance is matter that can be assessed on basis of common experience without need for expert medical testimony. Wilson v. Monroe County, 1/30/13, ES, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/wilsonfv.pdf

TORTS: In suit against instructor of motorcycle safety course and his employer for injuries plaintiff sustained when she drove off of designated course site and collided with parked pickup truck, trial court properly ruled that waiver signed by plaintiff before starting course was valid, thereby precluding plaintiffs negligence claims against defendants; motorcycle is not dangerous instrumentality, which would elevate act of ordinary negligence to act of gross negligence, and hence, plaintiffs gross negligence claims must also fail. Maxwell v. Motorcycle Safety Foundation Inc., 1/29/13, MS, Clement, 11 pages.
http://www.tncourts.gov/sites/default/files/maxwellr_opn.pdf

TORTS: In suit under Governmental Tort Liability Act by plaintiff who was injured when padlock was hurled from beneath lawnmower operated by city employee and through window of plaintiffs vehicle, trial court properly determined that city owed duty of care to plaintiffs when city had notice of four similar incidents of objects begin launched from beneath mowers within one year prior to incident involving plaintiff; evidence did not preponderate against trial courts determination that city breached duty of care when city did not follow its own procedures to ensure that debris was removed from median prior to mowing, city employee received no instruction on how to inspect area, city had notice that objects had been launched at vehicles from beneath mowers, that vehicles had been damaged as result, and that objects were thrown at high velocity from mowers, and city took no remedial steps; evidence did not preponderate against trial courts finding of causation. Bellanti v. City of Memphis, 1/30/13, WS, Farmer, 12 pages.
http://www.tncourts.gov/sites/default/files/bellantisandraopn.pdf

INSURANCE: When metal crane on boom truck that was hoisting sheet metal came into contact with overhead electrical wires electrocuting subcontractors employee, employee recovered workers compensation benefits from subcontractors workers compensation carrier, employee filed third-party personal injury action against third party, whom subcontractor had employed to supervise subcontractors work, Erie Insurance Exchange provided defense for third party pursuant to general liability policy, and Erie filed complaint for declaratory judgment against Columbia National Insurance Company, which provided commercial automobile insurance for general contractor on project alleging that boom truck was insured vehicle and that Columbia had primary duty to defend and indemnify third party because third party was additional insured under policy, trial court properly granted Columbia summary judgment; injury to employee occurred when boom truck was immobilized, wheels

were lifted off of ground, and it was only being used as power crane to lift heavy materials, and hence, boom truck was not being used as a land motor vehicle at time of employees accident; boom truck was being used as power crane which, by definition, makes it mobile equipment, and policy only covered mobile equipment while it was being carried or towed by covered auto, so boom truck was not insured when employee was injured on construction site. Erie Insurance Exchange v. Columbia National Insurance Co., 1/30/13, MS, Clement, 11 pages.
http://www.tncourts.gov/sites/default/files/erieopn.pdf

COMMERCIAL LAW: In suit by bank to recoup money owed on credit agreement after foreclosure sale failed to produce sufficient funds to repay loan in full, trial courts judgment in favor of bank is reversed because bank relied on two different versions of credit agreement, thereby failing to prove existence of enforceable contract; by relying on two different documents identifying different borrowers, bank failed to prove existence of enforceable contract; discrepancy in interest rate between alleged credit agreements and loan ledgers also leads to conclusion that bank failed to prove existence of enforceable contract. Coffee County Bank v. Hulan, 1/31/13, MS, Cottrell, 6 pages.
http://www.tncourts.gov/sites/default/files/coffeecobankopn.pdf

PROPERTY: In case in which DeVaughn purchased townhouse at The Preserve at Forrest Crossing Townhomes (Preserve) in 2004, at time DeVaughn purchased her unit, Preserve was governed by bylaws set froth in Declaration of Covenants and Restrictions for The Preserve at Forrest Crossing (Declaration), Declaration did not prohibit DeVaughn from leasing her unit to third parties, Declaration was amended in 2006 to restrict leasing of townhome in Preserve, DeVaughn rented her townhouse to Patterson in 1/10, Preserve notified both DeVaughn and Patterson that they were in violation of Declaration, and Preserve Association (Association) filed complaint against DeVaughn and Patterson seeking mandatory injunction enjoining continued rental by Patterson of DeVaughns townhome, trial court properly granted Association summary judgment enjoining DeVaughn from continuing to rent her townhome to Patterson and requiring Patterson to vacate unit; duly adopted amendment restricting either leasing or occupancy is binding on unit owners who purchased their units before amendment became effective; Preserves Declaration amendment prohibiting rental of individual units is consistent with Horizontal Property Act and with governing documents of Preserve, and, as such, is not against public policy. Preserve at Forrest Crossing Townhome Association Inc. v. DeVaughn, 1/30/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/preserveatforestcrossingopn.pdf

ESTATES & TRUSTS: When claimant filed claim against estate of his cousin seeking repayment of loans he made to decedent, trial court erred in ruling that

estates counsel could not question claimant about life insurance matter when decedents estate sought to take advantage of dead mans statute since estate is not party who had discussions with decedent; error was not reversible when counsel for estate was permitted to make offer of proof and claimants excluded testimony did not support estates theory that loans to claimant had been fully repaid. In re Estate of Wilson, 1/30/13, WS, Highers, 9 pages.
http://www.tncourts.gov/sites/default/files/wilsondannywestateofopn.pdf

FAMILY LAW: In case in which mother, at time of parties divorce, was designated primary residential parent of parties two children, and after mother filed petition to increase fathers child support obligation some years later, father filed countercomplaint seeking to be named childrens primary residential parent, evidence did not preponderate against trial courts conclusion that material change in circumstances had occurred since entry of parties parenting plan but that childrens best interests would be served by mother remaining primary residential parent; although evidence did not preponderate against trial courts finding that mothers relationships with three men adversely affected children by necessitating moves among residences of three men and mothers mother and that mother acted inappropriately in prompting childrens questions regarding parties divorce, mother primarily cares for children and promotes their relationship with father, while contrary is true of father, and while mothers relationships with men caused children to relocate residences and to change school systems for one-year period, mother otherwise demonstrated her ability to parent appropriately, as evidenced by close emotional bond between mother and children. Porter v. Porter, 1/25/13, WS at Nashville, Highers, concurrence by Kirby, 21 pages.
http://www.tncourts.gov/sites/default/files/porterrobertw_opn.pdf http://www.tncourts.gov/sites/default/files/porterrw_opnconcur.pdf

FAMILY LAW: In case in which parties were married in 1995, had child together, and separated in 2006, husband filed complaint for divorce in 4/07, wife did not answer complaint until 6/10, when she filed counter-complaint for divorce, between 2007 and 2010, husband made monthly car payments on wifes vehicle in amount ($667) that exceeded what would have been his child support obligation, beginning in 10/10, husband began paying child support in amount of $628 per month as set forth in temporary parenting plan, and wife sought retroactive child support from husband back to date of parties separation, trial court properly denied wifes request for retroactive child support, holding that it would have been inappropriate to require husband to pay additional $628 per month in retroactive child support given fact that his monthly car payments of $667 exceeded his child support obligation of $628 by $39, and wife testified that she would have used husbands child support checks to make these car payments herself. Carroll v. Carroll, 1/30/13, MS, Cottrell, 5 pages.
http://www.tncourts.gov/sites/default/files/carrollkwopn.pdf

FAMILY LAW: Parties were divorced in 2/11, marital dissolution agreement (MDA) required husband to pay wife periodic alimony of $1,200 per month, wife remarried on 8/1/11, husband filed motion to terminate his alimony obligation on 8/4/11, and wife argued that her remarriage did not affect husbands alimony obligation because MDA required husband to pay definite sum of money over definite period of time, without any conditions or contingencies with regard to termination of alimony obligation, trial court erred in concluding that MDA provided for alimony in futuro that terminated automatically upon wifes remarriage; because husbands alimony obligation was definite and calculable at time of award, with no contingencies, it was alimony in solido; although parties classification of alimony award is relevant in determining their intent, it is not absolutely conclusive, and when alimony provision at issue contained no contingencies or conditions regarding termination other than providing that it would continue for period of seven years for a total of 84 payments, parties singular reference to periodic alimony did not change basic character of award from definite to indefinite. Averitte v. Averitte, 1/29/13, WS at Nashville, Highers, 8 pages.
http://www.tncourts.gov/sites/default/files/averittekathylynnopn.pdf

FAMILY LAW: It is reversible error for trial court to proceed with termination of parental rights trial in absence of incarcerated parent when procedural requirements of TCA 36-1-113(f) requiring that incarcerated parent be given actual notice of time and place of hearing and be provided with court-appointed attorney, if indigent, in order to participate in hearing have not been followed; statutes and rules of court evidencing mandatory requirement for appointment of counsel in termination of parental rights proceedings include TCA 36-1-113(f) and Tennessee Supreme Court Rule 13. In re Jordan T.J., 1/29/13, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/jordantj_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Evidence was sufficient to convict defendant of three counts of solicitation to commit first degree murder when defendant was serious about using fellow inmate (McLaughlin) to kill three individuals, defendant provided detailed personal information about victims and was concerned about how he would settle up with McLaughlin, defendant was concerned about covering up any connection between himself, McLaughlin, and murders, and when asked by McLaughlin if they had deal and if they were straight, defendant responded affirmatively to both questions; undercover law enforcement officer posing as fellow inmate is not required to administer Miranda warning to defendant before questioning defendant about offense unrelated to offense for which defendant is incarcerated; defendant had

no reasonable expectation of privacy in letters he mailed from his jail cell. State v. Mendenhall, 1/30/13, Nashville, Thomas, 80 pages.
http://www.tncourts.gov/sites/default/files/mendenhallbruceopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of facilitation of first degree felony murder and facilitation of attempted especially aggravated robbery, trial judge erred in denying defendants motion to suppress when defendant invoked his right to remain silent prior to questioning when asked by police officer if he wanted to waive his right to remain silent, defendant answered naah and shook his head, albeit slightly, to side; trial judges error was harmless when trial courts admission of defendants statement, taken in violation of his right to remain silent, did not impact trial from beginning to end and was, thus, non-structural error. State v. Buford, 1/31/13, Nashville, Ogle, 23 pages.
http://www.tncourts.gov/sites/default/files/bufordrobert.pdf

CRIMINAL PROCEDURE: Trial court did not err in denying defendants motion for mistrial following bomb threat at beginning of his second trial during testimony of states first witness, one of deputies informed trial court that [t]heres been a bomb threat to the courthouse, and courthouse was evacuated when bomb threat, in and of itself, did not so taint jury as to create manifest necessity for declaration of mistrial; trial court carefully questioned each juror to ensure that bomb threat had had no impact on each jurors ability to continue to serve as fair and impartial juror, and trial court counsel was also allowed to question each individual juror, and jurors responses to these questions established that each one had remained untainted by outside information or influence; trial court did not err in admitting prior testimony of state witness (Blackwell) who was unavailable to testify in person when, although appellate court reversed verdict of defendants first trial because of Blackwells testimony, trial court purged Blackwells former testimony of reversible errors identified by appellate court in its opinion dealing with direct appeal from defendants first trial. State v. Miller, 1/28/13, Jackson, Bivins, dissent by Woodall, 19 pages.
http://www.tncourts.gov/sites/default/files/millerdopn.pdf http://www.tncourts.gov/sites/default/files/millerdwightdis.pdf

CRIMINAL LAW: In case in which defendant was convicted of 80 counts of criminal contempt after violating order of protection, because 170 of convictions in question were not listing in charging notice, they cannot stand, as proper notice was not given to defendant warrant and attachments to warrant specifically refer to 10 phone calls made by defendant to his ex-wife, and although proof of other incidents was introduced at trial, no mention is made in either warrant or attachments thereto of any other calls or text messages which were made by defendant; all convictions of criminal contempt based on conduct not charged, i.e., 170 counts, are reversed, and those sentences are vacated; 10 convictions for violating order of protection for

which proper notice was given are affirmed. State v. Thornton, 1/29/13, Nashville, Daniel, 9 pages.
http://www.tncourts.gov/sites/default/files/elder.pdf

SIXTH CIRCUIT COURT OF APPEALS TORTS: District court properly dismissed suit against United States and U.S. Department of Interior under Federal Tort Claims Act (FTCA) claiming damages for injuries plaintiff suffered when tree fell on his leg in national park; federal governments hazardous tree inspection and removal procedures are discretionary function, for which government has not waived immunity under FTCA; tree inspection and removal is sort of conduct inherently subject to important and unpredictable constraints like limited funds and manpower. Hatcher v. United States, 1/24/13, Donald, 7 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0089n-06.pdf

CONSTITUTIONAL LAW: In case in which plaintiff, Memphis nightclub which is located in Central Business District (CBD) where adult entertainment has been prohibited since 1993 and which is already allowed to present most forms of adult entertainment under grandfather clause in zoning ordinances, desires to present adult entertainment in form of compensated dances (nude dancing), nude dancing is not activity that can be grandfathered because it was not being legally conducted when 1993 ordnance changed zoning laws to prohibit adult entertainment in CBD; ordinance is not unconstitutionally vague; plaintiff did not establish that it was deprived of protected property or liberty interest when its dance permit was revoked and not reissued, and hence, its procedural due process rights were not violated. 600 Marshall Entertainment Concepts LLC v. City of Memphis, 2/1/13, McKeague, 17 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0026p-06.pdf

TRIAL COURTS CONSTITUTIONAL LAW: In suit filed by registered voters who reside in Shelby County seeking injunctive relief and declaratory judgment that legislation (2012 PC 514) (Plan) on state senatorial district is unconstitutional, plaintiffs motion for summary judgment is denied; plaintiffs contended that Plan violated requirement of Tenn. Const., Art. II, Sec. 6 to minimize split counties in redistricting, but, in denying plaintiffs motion for summary judgment, reasoning of intervenor and defendants is adopted that legislature acted with prudence in adopting bill which splits one more county than 2000 plan and reduces deviation to 9.15% when drawing districts of equal population. Moore v. State, 12/20/12, Davidson Chancery, Lyle, 11 pages.

REVENUE RULING TAXATION: Application of Tennessee sales and use tax to phone replacement program. Department of Revenue Letter Ruling 12-29, 11/21/12, 10, pages.
http://www.tn.gov/revenue/rulings/sales/12-29.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/