TAM-BYTES October 14, 2013 Vol. 16, No.

41
2013 TAM CLE CALENDAR

Audio Conferences
Taxes in Tennessee Divorce Cases: An Overview of Intermediate and Advanced Issues That Can Arise, 90-minute webinar presented by Rosemary Frank, Brentwood financial services professional, on Thursday, October 24 at 10 a.m. (Central), 11 a.m. (Eastern). Portability in Tennessee: Navigating the New Estate Planning Landscape, 60minute webinar presented by Rick Nickels, with Bone McAllester Norton PLLC, on Tuesday, November 12 at 2 p.m. (Central), 3 p.m. (Eastern). TennCare/Medicaid: Where We Are and Where We're Headed, 60-minute webinar presented by Tim Takacs, Hendersonville attorney, on Thursday, November 14 at 2 p.m. (Central), 3 p.m. (Eastern).

For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS THIS Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

KNOXVILLE FACULTY (Oct. 25): Donald Farinato, Holbrook Peterson Smith;

Monica Franklin, CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs
Lyle, and Judge Tim Easter; and attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

TENNESSEE WORKERS COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 WHERE: The Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers comp system; hear about issues arising with future medical benefits, causation, and pain management; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13

FAMILY LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, December 5-6 WHERE: Nashville at the Nashville School of Law *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit FACULTY: Chancellor James F. Butler, Judge Robert L. Childers, and Judge Phillip
Robinson; attorneys Amy J. Amundsen, Rosemary Frank, David Garrett, Barry Gold, Jimmy Helton, Lewis Jenkins, Marlene Moses, Kevin Shepherd, Greg Smith, and Jacob Thorington For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/family-law-13

TENNESSEE TORT LAW CONFERENCE WHEN: Friday, December 13 WHERE: Nashville at the Nashville School of Law *Earn up to 7.5 hours of CLE hours, including 1 hour of DUAL credit FACULTY: Davidson County Circuit Judge Tom Brothers, Laura Bishop Baker, Brandon
Bass, Robert Burns, Daniel Clayton, Keith Dennen, Candi Henry, and Bryan Moseley For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-tort-law

IN THIS WEEKS TAM-Bytes Supreme Court upholds comparative proportionality review analysis utilized in death penalty cases and rejects request to broaden pool of cases used to conduct comparison in death penalty cases; Court of Appeals affirms summary judgment on defamation claim but reverses summary judgment on invasion of privacy claim in suit by operations agent employed by Southwest Airlines against passenger for posting allegedly false and defamatory statements on Twitter and Facebook regarding actions taken by agent when passenger and her three children attempted to board plan in violation of Southwest Airlines policy; Court of Appeals holds that amount and accrual date of post-judgment interest are properly governed by state law in FELA actions adjudicated in state courts; In child support case in which fathers income fluctuated depending on overtime, bonuses, profit-sharing, or incentive program payments he received, Court of Appeals reverses trial courts order requiring father to pay mother child support each month in fixed amount, along with percentage of his fluctuating income, and reiterates that governing statutes require child support payments to be for definite amount; and Court of Criminal Appeals says that video recordings, which merely show scenes viewable by confidential informant, do not violate defendants right against unreasonable searches and seizures.

SUPREME COURT CRIMINAL LAW: Evidence was sufficient to convict defendant of two counts of attempted first degree murder based on fact that defendant was criminally responsible for actions of cohort, who shot and seriously injured two unarmed victims; there is nothing inherently suspect about attempted first degree murder conviction based upon theory of criminal responsibility; shooting retreating victim alone provides circumstantial evidence of premeditation. State v. Dickson, 10/8/13, Knoxville, Lee, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/dicksonkevin_opn.pdf

CRIMINAL SENTENCING: Evidence supported imposition of death sentence on defendant who was convicted of first degree felony murder in connection with death of 79-year-old carjacking victim; proportionality analysis adopted by majority of court in State v. Bland is affirmed; pool of cases considered in proportionality analysis

should not be broadened to include all first degree murder cases including those in which death penalty was never sought; proportionality review should include only those cases in which state sought death penalty and in which penalty phase was held, regardless of sentence actually imposed by jury. State v. Pruitt, 10/8/13, Jackson, Holder, partial dissent by Koch & Lee, 74 pages.
http://www.tncourts.gov/sites/default/files/pruittc_opn_corr.pdf

COURT OF APPEALS TORTS: In suit by operations agent (plaintiff) employed by Southwest Airlines against passenger (defendant) for posting allegedly false and defamatory statements on Twitter and Facebook regarding actions taken by agent when defendant and her three children attempted to board plane in violation of Southwest Airlines policy, trial court properly granted summary judgment to defendant on defamation claim; while defendant chose not to include entire circumstances in her communications and postings, particularly fact that she did not have appropriate passes to board flight as she sought, words attributed to her could not reasonably be construed to portray plaintiff as one who would endanger 4-year-old childs welfare, and trial court properly determined, as matter of law that defendants statements did not rise to level to constitute actionable defamation; trial court erred in granting defendant summary judgment on plaintiffs claim of false light invasion of privacy; to extent defendant relied upon words themselves to negate highly offensive to a reasonable person element of claim, construing words in light most favorable to plaintiff and affording her all reasonable inferences, reasonable person could find, under entire circumstances of incident, that defendants posting of selective facts placed plaintiff in false light by implying that plaintiff was rude and bad service agent, one who was more concerned with adherence to airline rules and procedures than welfare of child, and that these implications caused injury to her. Patterson v. Grant-Herms, 10/8/13, MS, Dinkins, partial dissent by Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/pattersonj.e._opn.pdf http://www.tncourts.gov/sites/default/files/pattersonje_concurdis_opn.pdf

TORTS: When University of Memphis student fell down elevator shaft while removing artwork following required University function at property leased by University, student filed suit against owner of property and his limited liability company, University, and University of Memphis Foundation (Foundation), summary judgment was granted in favor of Foundation, jury returned verdict of $4,103,720, fault was allocated 40% to state, 15% to student, and 45% to owner of property, and based upon indemnification agreement, trial court found state liable for owners share of jury verdict, or $1,436,215, doctor sufficiently demonstrated her qualification to render opinion regarding reasonableness and necessity of plaintiffs medical expenses, and hence, trial court did not abuse discretion in admitting such opinion; trial court did

not abuse discretion in excluding evidence related to pre-injury alcohol and/or drug use; because last clause of indemnification agreement providing that [t]he undersigned has inspected the premises and has found the premises to be suitable for his/it[]s event, currently planned for (date) Dec. 14, 2005 does not expressly indemnify owner for his own negligence, and because another meaning can be ascribed to such clause, last clause is insufficient to indemnify owner for his own negligent conduct; trial court erred in granting summary judgment to Foundation when Foundation did not affirmatively demonstrate absence of alter-ego or agency relationship; because agreement manifests no specific intent to create enforceable rights in persons who may be injured by conduct of indemnitee(s), plaintiff may not properly rely upon indemnification agreement to impose full liability against state. Wells v. State, 10/8/13, WS, Highers, 27 pages.
http://www.tncourts.gov/sites/default/files/wellsaustinopn.pdf

TORTS: In suit against medical legal examiner (MLE), who was employed by Nashville General Hospital, alleging that MLE was negligent in failing to inform plaintiff of certain preventative medications, in which MLE contended that she was government employee protected from liability by Governmental Tort Liability Act, trial court properly denied MLEs motion for summary judgment because MLE could not prove that she was paid by payroll department of Metro; fact that Metros Department of Finance issued MLEs paychecks does not transform her into Metro or hospital employee. Baker v. Snedegar, 10/8/13, MS, Cottrell, 11 pages.
http://www.tncourts.gov/sites/default/files/bakerkopn.pdf

WORKERS COMPENSATION: Amount and accrual date of post-judgment interest is properly governed by state law in FELA actions adjudicated in state courts. Denning v. CSX Transportation Inc., 10/9/13, WS at Nashville, Farmer, 13 pages.
http://www.tncourts.gov/sites/default/files/denningwilliamj_opn.pdf

FAMILY LAW: In case in which mother filed petition to modify her parenting time with parties child, trial court did not abuse discretion in disqualifying mothers attorney (Harris) from representing her in proceedings below when opposing counsel had represented to court that he would certainly be calling Harris as fact witness; trial court abused discretion in disqualifying Harris from representing mother in any new matters in this case when determination regarding disqualification of attorney is to be made based upon specific matters being litigated, and future post-divorce litigation in case could concern matters about which Harris had no personal knowledge; trial court erred in ordering mother to produce bank records regarding funds held by her on behalf of minor child because hearing was on mothers parenting time and funds held for benefit of child had no relevance to that petition. Carter v. Carter, 10/7/13, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/carterm_elaine_opn.pdf

FAMILY LAW: In child support case in which fathers income fluctuated depending on overtime, bonuses, profit-sharing, or incentive program payments he received, and trial court ordered father to pay mother child support each month in fixed amount, along with percentage of his fluctuating income, because child support payments were not for definite amount, trial courts child support order is reversed; governing statutes require child support payments to be for definite amount, not amount that fluctuates; given fact that trial court averaged fathers income over past three years and applied Child Support Guidelines to establish definite amount of support due each month, fathers fluctuating income, i.e., his overtime, bonuses, etc., were included in averaging of his income over past three years. Allen v. Allen, 10/9/13, MS, Cottrell, 9 pages.
http://www.tncourts.gov/sites/default/files/allenpl_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Indictment provided defendant with adequate notice of dangerous felony he was charged with committing while employing firearm when voluntary manslaughter was listed as dangerous felony in code section in indictment, i.e., TCA 39-17-1324(i)(1), and was only other offense charged in indictment; trial judge did not err in failing to instruct jury on self-defense or by instructing jury that defendants statements could qualify as confessions. State v. Carlisle, 10/7/13, Jackson, Tipton, 24 pages.
http://www.tncourts.gov/sites/default/files/carlislezacharyopn.pdf

CRIMINAL PROCEDURE: In drug case in which, on day trial was scheduled to begin, state informed trial court that because drug task force agent (White) had prior subpoena to appear in federal court that same day, he would be unable to appear and testify at defendants trial, and defendant agreed to stipulate that TBI lab report was authentic and admissible without Whites testimony, stating that he just wanted to get this over with because it [had been] going on for a year, because defendant knowingly and voluntarily waived his right to confront White, defendants right to confront White, one of states witnesses, was not violated; witness cannot be rendered incompetent to testify due solely to his or her bad character, and neither does prior criminal conviction render witness incompetent to testify; search warrant is not required when police record defendants telephone conversations with confidential informant, so long as informant has consented to recording; TCA 39-13-604 applies only to admissibility of cordless and cellular phone transmissions and is inapplicable to video surveillance recordings; video recordings, which merely show scenes viewable by confidential informant, do not violate defendants right against unreasonable searches and seizures; provision of standby counsel affords defendant legal tools necessary for preparation of defense equivalent to access to adequate law library, and as such, because defendant had access to standby counsel throughout trial

process, he was not denied his right of access to courts regardless of his restricted access to prison law library. State v. Anderson, 10/4/13, Jackson, Thomas, 16 pages.
http://www.tncourts.gov/sites/default/files/andersonkennethopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of two counts of felony failure to appear when defendant pled guilty to two Class A misdemeanors, as part of her plea agreement, she agreed to serve five days in county workhouse but, due to health concerns, would serve five days approximately one month after guilty plea acceptance hearing, and defendant failed to report to jail one month later as ordered; although defendant argued that she was free, i.e., not in custody, during her court appearance and, thus, could not have been released from custody, defendant was obligated to be in courtroom to address her charges, and she would have been transferred to county workhouse same day that she entered her guilty pleas if general sessions court had not accommodated her special needs by allowing her to report at later date, and as such, was under restraint by public servant, i.e., general sessions court, and was not free, even though she may not have been in handcuffs at time. State v. Hernandez, 10/7/13, Nashville, Page, 11 pages.
http://www.tncourts.gov/sites/default/files/hernandeznoraopn_0.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