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TAM-BYTES March 24, 2014 Vol. 17, No.


Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients For more information or to register go to: www.mleesmith.com/tn-med-mal

*************************************************************** 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE *This conference is ideal for all attorneys whether youre tech-savvy or new to cloud computing! FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information or to register go to: www.mleesmith.com/tn-tech


VA Pension: How to Use a Little-Known Benefit to Aid Your Clients, 60minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 3 at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. Telephone Consumer Protection Act: New Rules on Computer Calls, 60-minute webinar presented by Stan Herring, Birmingham attorney, on Thursday, April 10, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. New RESPA Rules: Help for Homeowners Facing Foreclosure, 60-minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 17, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit. Probate Litigation in Tennessee: Learn the Impact of 2013 Changes and Whats Ahead, 60-minute webinar presented by Rebecca Blair, Brentwood attorney, on Thursday, April 17, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes Workers Comp Panel, in affirming trial courts ruling that employees 2012 repetitive injury was compensable, says plain text of TCA 50-6-102(12)(C)(ii) (Supp. 2011), clearly permits finding of compensability when specific repetitive work activity is primary cause of medical condition; Court of Appeals reverses trial courts finding that foreclosing party satisfied its burden to establish existence, terms, and disposition of promissory note for which there was no original or photocopy; and Court of Criminal Appeals rules petitioner, who argued that he was ineligible for death penalty because he was intellectually disabled, failed to establish by preponderance of evidence that he had [s]ignificantly subaverage general intellectual functioning as evidenced by IQ of 70 or below. WORKERS COMP PANEL WORKERS COMPENSATION: When employee alleged that he suffered gradual injury in early 2012 to his cervical spine due to strenuous repetitive tasks and heavy lifting required by his employment, TCA 50-6-102(12)(C)(ii) (Supp. 2011), statute which applies to injuries occurring after 7/1/11, provides that cumulative trauma conditions do not include injuries resulting from repetitive work activities unless such conditions arose primarily out of and in the course and scope of employment, treating physician testified that employees condition was primarily caused by his repetitive work activities, and evaluating physician considered employees cervical myelopathy to be natural result of degenerative disc disease, trial court did not err by giving greater weight to treating physicians opinions; plain text of TCA 50-6102(12)(C)(ii) (Supp. 2011) clearly permits finding of compensability when specific repetitive work activity is primary cause of medical condition; evidence did not preponderate against trial courts finding that employee sustained compensable repetitive injury as result of his work activities. DeGalliford v. United Cabinet Co., 3/17/14, Nashville, Lee, 11 pages.

COURT OF APPEALS PROPERTY: When plaintiff in wrongful death action filed motion to quash Notice of Hospital Lien which had been filed in accordance with TCA 29-22-101 et seq. on behalf of medical center which rendered care to decedent, trial court erred in holding that medical center had not properly perfected its lien; reasonable diligence required by TCA 29-22-102(b) was for medical center to determine whether there was attorney representing the person to whom services were rendered; medical centers efforts

satisfied reasonable diligence requirement when account reimbursement specialist for medical center attested that copy of notice of lien was mailed to address listed in patient record and returned undelivered, and that, in nearly three months between filing of suit and preparation of notice, medical center was not advised either of fact that suit had been filed, name of any counsel for plaintiff, or if any person, firm or corporation claimed to be liable on the account; medical center was not required to search clerks records; since medical center properly perfected its lien, TCA 20 -5106(a) does not prevent lien from attaching to settlement proceeds. Blackburn v. McGee, 3/17/14, MS, Dinkins, 8 pages.

PROPERTY: In case in which plaintiffs, husband and wife, filed action to quiet title to property in connection with deed of trust securing 1997 promissory note, with original maturity date in 1998, executed by South Carolina limited liability company of which plaintiff husband was member, defendant (company to whom note had been assigned by bank) filed counterclaim for judicial foreclosure, and, although defendant was unable to produce original or photocopy of 10/98 renewal promissory note or evidence that complied with TCA 24-8-101 to prove it was lost negotiable instrument, trial court held that copy of 1999 Change of Terms Agreement was sufficient to establish existence of 10/98 renewal note, to establish extension of maturity date to 2000, and to prove that statute of limitation had not run and that defendant was vested with right to enforce deed of trust, trial court erred in finding that evidence was sufficient to satisfy defendants burden of proof as foreclosing party; production of original promissory note has been called golden rule of foreclosure, and it is rare for any jurisdiction to permit judicial foreclosure without production of promissory note. Dickerson v. Regions Bank, 3/19/14, MS, Clement, 22 pages.

FAMILY LAW: Evidence did not preponderate against trial courts determination that material change in circumstances had occurred warranting change in custody of parties two children to father from mother when mother failed to comply with several requirements of parenting plan, mother was living with man she alleged had abused her, mother refused to notify father of childrens medical issues or school activities, mother interfered with fathers right to contact children, and mothers ability to facilitate and encourage close and continuing parent-child relationship between children and father was severely lacking. In re Jalin M.B., 3/19/14, ES, McClarty, 14 pages.

FAMILY LAW: In case in which two relatives (petitioners) filed petition to terminate parental rights of parents (respondents) to their three children, trial court appointed counsel to represent respondents in parental termination action, parties eventually resolved their dispute through mediated agreement, children remained with respondents, and respondents filed motion for attorney fees under TCA 36-5-103(c),

trial court properly held that TCA 36-5-103(c) was inapplicable and denied respondents request for attorney fees; case was correctly characterized as termination of parental rights case and not custody case; there is no statutory or precedential basis for award to respondents of additional attorney fees respondents appointed counsel had already received compensation from state for their appointed work under statute in termination of parental rights case when appointed counsel have already been compensated for their appointed work. In re Nathaniel C.T., 3/17/14, ES, Swiney, concurrence by Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/inrenathanielctopn.pdf http://www.tncourts.gov/sites/default/files/nathanielctcon.pdf

FAMILY LAW: In case in which petitioners, foster parents of six siblings, were indicated by Department of Childrens Services (DCS) as perpetrators of child neglect for lack of supervision and environmental neglect, indication for environmental neglect was deemed unfounded by ALJ, but indication for lack of supervision was upheld, and chancellor upheld indication for lack of supervision, because citation for environmental neglect was not well grounded in fact and was not warranted by existing law, rule or regulation, petitioners are entitled to award of reasonable expenses, including attorney fees they have incurred because of citation for environmental neglect; if TCA 4-5-325(a)(1) were interpreted as only authorizing award of attorney fees if DCS issued citation knowing that it was not well grounded in fact and law, there would be little need for subsection (a)(2) of statute, which provides for award of attorney fees when citation is issued for improper purpose. Fitzpatrick v. State Department of Childrens Services, 3/18/14, WS at Nashville, Highers, 37 pages.

CIVIL PROCEDURE: When plaintiff filed suit against bank alleging that it had settled her claim for damages to her house with insurance company without her consent, bank served discovery on plaintiff and moved to dismiss plaintiffs claim after plaintiff did not comply with discovery request, trial court granted banks motion to dismiss, and plaintiff filed motion to set aside dismissal pursuant to TRCP 59, trial court erred in denying plaintiffs motion to set aside; while plaintiff did not respond to banks motion to dismiss, her motion to set aside pointed out that discovery deadlines in current scheduling order had not yet passed, and it appears that this is type of oversight that TRCP 59.04 is designed to cure; once amended scheduling order was brought to attention of trial court, courts dismissal for failure to comply with discovery orders should have been set aside in order to correct clear error or to prevent injustice. Baxter v. Heritage Bank & Trust, 3/19/14, MS, Cottrell, 7 pages.

CIVIL PROCEDURE: In case in which husband filed TRCP 60.02 motion seeking relief from parties divorce decree, specifically that provision pertaining to his retirement benefits was inequitable, trial court initially denied motion, husband filed

timely notice of appeal, and almost two years later, husband voluntarily dismissed his appeal, effect of dismissal of husbands appeal was to affirm trial courts denial of husbands TRCP 60.02 motion; regardless of trial courts conviction that percentage of husbands retirement allocated to wife in eight-year-old default divorce was inequitable, once husbands first appeal was dismissed, trial court was precluded under law of case doctrine from reconsidering its earlier denial of husbands TRCP 60.02 motion. Brown v. Brown, 3/13/14, WS at Nashville, Kirby, 11 pages.

GOVERNMENT: When civil service employee, accountant with Tennessee Department of Finance and Administration, filed grievance with Civil Service Commission complaining he was not given supervisory responsibilities in accordance with job description that was posted when he accepted position, trial court properly affirmed administrative law judges dismissal of employee grievance; employees grievance is covered by Department of Human Resources (DHR) Rule 1120-11.07(16) (matters relating to internal agency or program management based on discretionary decision making) and is, therefore, non-grievable; because employees complaint is non-grievable matter pursuant to applicable DHR regulations, Civil Service Commission did not have subject matter jurisdiction to consider employees complaint. Randle v. State, 3/13/14, MS, Cottrell, 9 pages.

APPEAL & ERROR: When appellant filed her notice of appeal from general sessions court with 24-hour general sessions criminal clerks office, but did not pay costs or bond because 24-hour clerks office does not accept any payments for civil matters, trial court properly dismissed appellants appeal for lack of jurisdiction; TCA 27-5-108 requires appellant to perfect appeal within 10 days of entry of general sessions courts judgment, and in order to perfect appeal from general sessions court to circuit court, appellant must file both notice of appeal and bond with good security within this 10-day period, and hence, appellants failure to timely post bond of any kind was fatal to his appeal. Peterson v. Lepard, 3/20/14, WS, Stafford, concurrence by Highers, 11 pages.

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Defendants dual convictions for attempted aggravated robbery and aggravated assault violate double jeopardy when both convictions are based on defendants use of deadly weapon, against same victim, and causing that victim to experience fear of personal harm; defendants aggravated assault conviction is vacated, and case is remanded to trial court for entry of amended judgment reflecting

merger of defendants aggravated assault conviction into his attempted aggravated robbery conviction. State v. Martin, 3/20/14, Nashville, McMullen, 24 pages.

CRIMINAL LAW: Drug-Free School Zone Act (Act) does not violate constitutional protections of due process, equal protection, and prohibitions against cruel and unusual punishment; language of Act imposes enhanced criminal penalties for drug offenses occurring inside school zone regardless of timing of drug offense, i.e., regardless of whether or not school is in session or children are present. State v. Goodrum, 3/20/14, Nashville, McMullen, 14 pages.

CRIMINAL PROCEDURE: TCA 40-11-128 provides that convicted felon many not be bondsman or bondsmans agent, and statute fails to provide an exception for convicted felons who have had their citizenship rights restored. In re Free U Bonds Inc., 3/19/14, Knoxville, Ogle, 4 pages.

CRIMINAL SENTENCING: In case in which petitioner, who was convicted of two counts of felony murder and sentenced to death, filed postconviction petition arguing that he is intellectually disabled and thus ineligible for death penalty, petitioner failed to establish by preponderance of evidence that he had [s]ignificantly subaverage general intellectual functioning as evidenced by IQ of 70 or below, which would make him ineligible for death penalty when of experts who testified regarding petitioners intellectual capabilities, only Dr. Bishop found him to be intellectually disabled, and rather than stating that petitioner likely had certain IQ or had IQ either above or below 70, Bishop provided range of possible IQ scores; trial counsel were not ineffective in failing to retain neuropsychologist when unsupported assertions that expert is necessary to counter proof offered by state is not sufficient to establish particularized need; mere hope or suspicion that favorable evidence could be obtained from psychiatric evaluation does not rise to level of particularized need. State v. Carter, 3/13/14, Jackson, Tipton, 151 pages.

ATTORNEY GENERAL OPINIONS EMPLOYMENT: Proposed bill, which would make it offense for individual or organization to engage in mass picketing activity in context of strike, lockout, o r other labor dispute, constitutes invalid content-based restriction on speech under First

Amendment and Tenn. Const. Art. I, Sec. 19. Attorney General Opinion 14-31, 3/17/14, 6 pages.

GOVERNMENT: Proposed bill, which would amend current definition of telecommunications to include furnishing of telephone service, either local or long distance, leased lines or equipment for the vocal or written transmission of messages, or any related services for which a charge is made under certain conditions in order to remove current restriction on type of telecommunications service cooperative may provide for seven smallest counties by population in state, is constitutional. Attorney General Opinion 14-33, 3/18/14, 5 pages.

INSURANCE: Proposed bill, which would amend Tennessee Insurance Law by restricting third-party payer from making material change to contract under which healthcare provider is paid for service during first year of contract or initial term of contract, is constitutional. Attorney General Opinion 14-34, 3/18/14, 3 pages.

CRIMINAL SENTENCING: Proposed bill, which would permit use of electrocution in executions if ingredients required for execution by lethal injection are unavailable, is constitutionally defensible. Attorney General Opinion 14-29, 3/12/14, 4 pages.

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