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Trial court’s compliance with TRCP 56.04 when granting or denying summary judgment motion, whose name should be listed on birth certificate as “mother” when child is born of surrogate mother with anonymously donated egg and husband’s sperm, whether consent to search home is contaminated by officers’ initial warrantless entry into residence, and more from Tennessee appellate courts ...
Trial court’s compliance with TRCP 56.04 when granting or denying summary judgment motion, whose name should be listed on birth certificate as “mother” when child is born of surrogate mother with anonymously donated egg and husband’s sperm, whether consent to search home is contaminated by officers’ initial warrantless entry into residence, and more from Tennessee appellate courts ...
Trial court’s compliance with TRCP 56.04 when granting or denying summary judgment motion, whose name should be listed on birth certificate as “mother” when child is born of surrogate mother with anonymously donated egg and husband’s sperm, whether consent to search home is contaminated by officers’ initial warrantless entry into residence, and more from Tennessee appellate courts ...
Vol. 17, No. 29 2014 TAM CLE CALENDAR Webinars Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury Trials, 60-minute webinar presented by William L. Pfeifer, Jr., Alabama appellate attorney, on Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit
Piercing the Corporate Veil in Tennessee: What Your Business Clients MUST Know, 60-minute webinar presented by Cole Dowsley, Franklin attorney, on Thursday, August 14, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
False Claims Act Recovery and Protection for Whistleblowers, 60-minute webinar presented by Larry Golston, Montgomery attorney, on Wednesday, August 27, at 2 p.m. (Central), 3 p.m. (Eastern).
On-Site Events Personal I njury Law Conference for Tennessee Attorneys Friday, September 26 Nashville School of Law
TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice, including the latest products liability developments, trial tips from a trial judge, handling medical records and private information, limitations on the use of HIPAA protected documents in litigation, Affordable Care Act concerns, auto insurance policies, negotiating with insurance adjusters, caps on damages, Medicare set- asides, and maintaining client confidentiality.
FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.
*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit
Probate & Estate Planning Conference for Tennessee Attorneys Thursday & Friday, October 23-24 Nashville School of Law
TOPICS: Spend 2 days with some of the states top estate planning and probate practitioners offering tips on advanced estate planning strategies, drafting QTIPs, GRATs, and QPRTs, will drafting in 2014, the intersection of family law and estate planning issues, use of Medicaid-compliant annuities, hot topics in probate litigation, practicing in probate court, and updates on issues related to trusts, estate planning, and probate. Also, hear about ethical issues arising when crafting a healthcare power of attorney, a living will, or an advance care plan and ethical issues arising in estate administration, such as client confidentiality, billing inquiries, and other difficult-to-resolve dilemmas.
FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell, Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank of America Private Wealth Management; Harlan Dodson, Dodson, Parker, Behm & Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell, Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L. Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley, Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright, CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.
For more information on any of our CLE events, call (800) 727-5257 or visit www.mleesmith.com.
IN THIS WEEKS TAM-Bytes
Supreme Court says that, in future, resolution of issues relating to trial courts compliance or lack of compliance with TRCP 56.04 should take into consideration fundamental importance of assuring that trial courts decision either to grant or deny summary judgment is adequately explained and is product of trial courts independent judgment; Workers Comp Panels says medical expert testimony is not required to establish permanent and total disability; In case in which parties settled employees workers compensation claim, with employer agreeing to provide future medical benefits, Workers Comp Panel rules trial court did not err in ordering employer to provide panel of orthopedic surgeons to evaluate employees current need for treatment; In case involving parents (husband and wife) of child born of surrogate mother with anonymously donated egg and husbands sperm, Court of Appeals says name of surrogate mother should be listed on childs birth certificate; Court of Appeals rules trial court did not err by including cost mother pays to enroll children in pre-kindergarten program at private school on support worksheet as work-related childcare, instead of extraordinary educational expense; In case in which defendant challenged search of mobile home she and her husband rented, Court of Criminal Appeals says while lessee is assumed to have privacy interests in premises during rental period, such expectation of privacy is lost if lessee abandons property; Court of Criminal Appeals rules that defendants consent to search his home was not contaminated by officers initial warrantless entry into residence; In reversing trial courts grant of motion to suppress, Court of Criminal Appeals says that while odor of alcohol alone was insufficient to establish probable cause, combination of odor of alcohol with other signs of intoxication supported finding of probable cause for DUI arrest; In DUI case, Court of Criminal Appeals affirms trial courts finding that there was probable cause to believe that defendant was driving while intoxicated even if he passed field sobriety tests administered by law enforcement; and General Assembly revises Tennessee Nonprofit Corporation Act.
SUPREME COURT
CIVIL PROCEDURE: In future, resolution of issues relating to trial courts compliance or lack of compliance with TRCP 56.04 should take into consideration fundamental importance of assuring that trial courts decision either to grant or deny summary judgment is adequately explained and is product of trial courts independent judgment; TRCP 56.04 requires trial court, upon granting or denying motion for summary judgment, to state grounds for its decision before it invites or requests prevailing party to draft proposed order; trial court failed to comply with TRCP 56.04 when it failed to state its grounds when it decided to grant defendant hospitals motions for summary judgment, and record provides no basis for imputing reasons included in orders prepared by defendants counsel to trial court; trial court failed to perform high judicial function required by TRCP 56.04 when it did not provide parties with grounds for its decision, which would have demonstrated that it had exercised its own independent judgment in reaching decision ultimately reflected in summary judgment orders. Smith v. UHS of Lakeside I nc., 7/15/14, Jackson, Koch, unanimous, 19 pages. http://www.tncourts.gov/sites/default/files/smithmaryopn.pdf
WORKERS COMP PANEL
WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employee, who underwent two disc surgeries, was permanently and totally disabled when trial court accredited employees testimony as to his own limitations and statements he made to vocational experts, employee testified that he was unable to sit for long periods of time and had difficulty concentrating due to his medication, and two vocational experts agreed that employee was unable to return to any of his previous employment positions and only disagreed as to extent of employees disability; medical expert testimony is not required in order to establish permanent and total disability. Hamilton v. Pemberton Truck Lines I nc., 7/16/14, Knoxville, Wade, 9 pages. http://www.tncourts.gov/sites/default/files/hamiltontracyopn.pdf
WORKERS COMPENSATION: When employee settled her workers compensation claim in 1997, with employer agreeing to provide future medical benefits, her authorized treating physician retired, employee selected new physician in 11/07 from panel provided by employer, and new physician recommended home exercise program, which employee believed was not adequate treatment, trial court did not err in ordering employer to provide panel of orthopedic surgeons to evaluate employees current need for treatment; although TCA 50-6-204 does not explicitly authorize trial court to order provision of new panel of physicians by employer, nothing n statute precludes trial court from doing so. McClendon v. Food Lion LLC, 7/11/14, Knoxville, Blackwood, 9 pages. http://www.tncourts.gov/sites/default/files/mclendonvfoodlion.pdf
COURT OF APPEALS
TORTS: When plaintiffs filed suit against several doctors following their mothers death, plaintiffs allegedly learned that appellee physician had amended his original consultation report to correct misdiagnosis of decedents condition, plaintiffs were granted leave to amend complaint to add appellee and his medical practice as defendants to suit, amended complaint was filed five years after filing of original suit, and appellees moved for summary judgment on ground that statutes of limitation and repose barred plaintiffs case, trial court properly granted appellees summary judgment; giving all reasonable inferences in favor of plaintiffs, if appellees amendment was against recognized standard of professional care, then one might reasonably infer that his purpose in deviating from that standard of care was more than mere mistake, but was attempt to hide his original incorrect diagnosis, and trial court erred in granting summary judgment on ground of lack of evidence of fraudulent concealment; plaintiffs had all of relevant information at their disposal by 7/22/10 so as to be charged with constructive notice of any alleged fraudulent concealment as to that date, and hence, one-year statute of limitation would begin to run on 7/22/10 and expire on 7/22/11; because case is medical negligence case, plaintiffs were required to send notice to appellees prior to filing suit pursuant to TCA 29-26-121, and when plaintiffs complied with notice requirements by sending statutory notice to appellees by letter dated 7/21/11, TCA 29-26-121(c) extended statute of limitation for 120 days, or until 11/19/11, and complaint against appellees, filed on 2/1/12, was filed outside statutes of limitation and repose. Robinson v. Baptist Memorial Hospital, 7/11/14, WS, Stafford, 21 pages. http://www.tncourts.gov/sites/default/files/robinsonmopn.pdf
EMPLOYMENT: When state employee was late for work on numerous occasions prior to and throughout 2010, she sustained work injury in 10/10, she was tardy for work on 1/15/11, termination proceedings were commenced shortly thereafter, prior to her receipt of letter recommending termination, and employee tendered request for FMLA leave, which leave was approved after termination was recommended but before termination was confirmed, Civil Service Commissions decision to uphold employees termination was not arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion because conduct subject to discipline occurred prior to any FMLA request and termination proceedings were commenced prior to approval of such request without knowledge that such request had been made; FMLA request does not trump ongoing disciplinary matter; employee failed to establish elements of interference with FMLA claim when evidence demonstrated with regard to 1/15/11 tardiness incident, straw that broke the camels back, that employee failed to contact her supervisor and/or phone call-out log or to provide doctors excuse in accordance with employers policies, and hence, employer effectively demonstrated that it would have terminated employee for failing to comply with leave requirements notwithstanding any attempt to utilize FMLA leave. Hayes v. State, 7/10/14, WS at Nashville, Highers, 12 pages. http://www.tncourts.gov/sites/default/files/hayesconnie.opn_.pdf
EMPLOYMENT: When chief executive officer of company (plaintiff) and company executed employment agreement that set forth consequences of his resignation or termination by company, plaintiff called meeting year or so later and issued ultimatum to board of directors threatening to resign if certain changes were not made, company later wrote letter to plaintiff accepting his resignation without Good Reason as defined in employment agreement, plaintiff asserted that company terminated him without cause and that he did not resign, company responded that it did not terminate plaintiff but simply accepted his resignation, and plaintiff filed suit seeking severance pay and other benefits he claimed that he was entitled to pursuant to employment agreement, trial court properly granted plaintiff summary judgment; according to governing document, any resignation by plaintiff would not be effective without written notice, plaintiff did not provide such notice, and hence, plaintiff did not terminate his own employment; effect of companys letter addressed to plaintiff was to terminate his employment, letter did not specify any circumstances supporting decision to terminate plaintiff for cause, and hence, company terminated plaintiff without cause and he is entitled to severance pay and other benefits specified in contract. ONeil v. Clinically Home LLC, 7/16/14, MS, McMillan, 16 pages. http://www.tncourts.gov/sites/default/files/oneilm.opn_.pdf
INSURANCE: When Casey was supervising two minors, her daughter and neighbor (Ryan), who were riding four-wheeler owned by Casey on Simmons property, Casey entered house and Ryan began operating four-wheeler, Ryan apparently drove four-wheeler into road where he collided with passing vehicle driven by Tipton, Ryan was killed in accident, Ryans father filed suit against Simmons, Casey, and Tipton, Simmons was insured under property owners policy, insurer entered defense on behalf of Simmons and Casey, with reservation of rights, and insurer brought declaratory judgment action, trial court properly held that policy provided no coverage with respect to accident or subsequent suit; when policy exclusion defined land motorized vehicle to include four-wheeler, among other things, owned by insured while off the insured premises, policy language required four-wheeler to be off insured premises in order to be considered land motorized vehicle. Tennessee Farmers Mutual Insurance Co. v. Simmons, 7/15/14, ES, Frierson, 7 pages. http://www.tncourts.gov/sites/default/files/simmonsfinal.pdf
TAXATION: In order to invoke jurisdiction of court to hear claim that collection of tax would be unjust or illegal, taxpayer must first pay tax, and party is not excused from this requirement based on nature of partys challenge to tax or manner in which unjustness or illegality of tax is raised. Nashville Metro Government v. New Orleans Manor I nc., 7/16/14, MS, Dinkins, 6 pages. http://www.tncourts.gov/sites/default/files/nashvillemetrogov.v.neworleans.opn_.pdf
PROPERTY: In case in which plaintiffs and defendant each owned property on island in Tennessee River, there was causeway or land bridge across river, connecting island to mainland, and defendant filed claim for private condemnation of easement on plaintiffs property to enable defendant to access causeway, because causeway is accessible by public, trial court erred by enjoining defendant from using causeway; private condemnation action is not defeated simply because person who seeks condemnation may access public road by going through navigable waters; because allowing defendant to use plaintiffs property to gain access to causeway is defendants only adequate and convenient outlet to public road, trial court erred in concluding that private condemnation statute, TCA 54-14-102, was inapplicable; defendant is entitled to private condemnation of easement over plaintiffs property on mainland end of causeway and on island end of causeway, so that he may access Mullins Cove Road from his property. Walker v. Smith, 7/11/14, WS at Nashville, Kirby, 19 pages. http://www.tncourts.gov/sites/default/files/walkerr.opn_.pdf
FAMILY LAW: In case involving parents (husband and wife) of child born of surrogate mother with anonymously donated egg and husbands sperm, trial court erred in requiring childs birth certificate to list mother as unknown; while wife is childs legal mother, name of surrogate mother should be listed on birth certificate as childs mother; while Vital Records Act of 1977 (Act), which requires that certificate of birth be filed with office of vital records for every live birth in Tennessee, does not define mother for use in completing birth certificate, in considering intent of and purpose of Act, mother to be entered on certificate of live birth required by TCA 68-3-301 is same as that used in preparing Standard Certificate of Live Birth, as promulgated by National Center for Health Statistics, i.e., woman who delivers child or woman who produced the live birth. I n re Adoption of Male Child A.F.C., 7/16/14, MS, Dinkins, 8 pages. http://www.tncourts.gov/sites/default/files/inre.a.f.c.opn_.pdf
FAMILY LAW: Because tuition mother pays to enroll children in pre- Kindergarten program at private school is legitimate child care expense, trial court did not err by including that cost on child support worksheet as work-related childcare, instead of extraordinary educational expense, for purposes of calculating child support; even though children are enrolled in program at private school and cost of that program is billed as tuition, nature of that program and its cost are not so different from what parents ordinarily encounter when arranging daycare for children who have not yet reached school age. Rucker v. Harris, 7/15/14, MS, Stanley, 9 pages. http://www.tncourts.gov/sites/default/files/ruckerm.opn_.pdf
FAMILY LAW: In case in which husband sought to terminate his alimony obligation to wife based upon oral agreement at time of divorce that alimony would cease upon husbands retirement, when marital dissolution agreement became effective upon entry of final divorce decree, and there was no mention of any agreement between husband and wife that spousal support would automatically terminate once husband retired, trial court did not err in refusing to allow husbands testimony of oral agreement under parol evidence rule of contract law. Bailey v. Bailey, 7/17/14, ES, McClarty, 5 pages. http://www.tncourts.gov/sites/default/files/bailey2opn.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL LAW: Evidence was sufficient to convict defendant of attempted voluntary manslaughter when defendant accused victim of stealing his laptop computer, when victim denied having computer, defendant grew extremely upset and continued to yell at her and demand whereabouts of computer, and during confrontation, defendant suddenly shot victim, after which defendant continued to yell at victim about computer and threatened to kill her; jury determined that defendant acted out of adequate provocation so as to establish element of voluntary manslaughter based on defendants belief that victim stole his computer along with her denial of theft when he confronted her. State v. Khaliq Ra-El, 7/11/14, Jackson, Woodall, concurrence by Witt, 11 pages. http://www.tncourts.gov/sites/default/files/raelkhaliqopn.pdf http://www.tncourts.gov/sites/default/files/ra-elkhaliqcon.pdf
CRIMINAL PROCEDURE: In case in which defendant and her husband were convicted of especially aggravated robbery and especially aggravated kidnapping in connection with offenses committed against their 83-year-old landlord, trial judge properly denied defendants motion to suppress evidence seized inside her mobile home when she lacked standing to contest search; while fact that defendant and her husband were behind in rent for mobile home would not automatically preclude finding that they intended to return to home, additional facts suggest that couple intended to abandon premises when they lured their landlord over to residence to assault and rob him and then tied him up prior to their departure; while lessee is assumed to have privacy interests in premises during rental period, such expectation of privacy is lost if lessee abandons property. State v. Thomas, 7/14/14, Knoxville, Thomas, 16 pages. http://www.tncourts.gov/sites/default/files/thomaschristinaleejonesopn.pdf
CRIMINAL PROCEDURE: In case in which defendant pled guilty to initiating process intended to result in manufacture of methamphetamine and being felon in possession of firearm, trial judge properly denied defendants motion to suppress items seized during search of his home when defendant gave officers consent to search his residence and that consent was not contaminated by officers initial warrantless entry into residence; when determining whether voluntary consent is sufficiently attenuated from unlawful seizure, three factors must be considered temporal proximity of illegal seizure and consent, presence of intervening circumstances, and purpose and flagrancy of official misconduct. State v. Hammock, 7/15/14, Nashville, Page, 10 pages. http://www.tncourts.gov/sites/default/files/hammockcurtiswopn.pdf
CRIMINAL PROCEDURE: In DUI case, trial judge erred in granting defendants motion to suppress with regard to any evidence or statements pertaining to or obtained after defendants arrest when, while odor of alcohol alone was insufficient to establish probable cause, combination of odor of alcohol with other signs of intoxication supported finding of probable cause for DUI arrest; trial court incorrectly concluded that officers observations were insufficient to establish probable cause to justify warrantless arrest of defendant when defendant committed traffic violation by running stop sign, he and his vehicle emitted strong odor of alcohol, and he admitted having consumed three or four beers. State v. Roscoe, 7/11/14, Jackson, Glenn, 7 pages. http://www.tncourts.gov/sites/default/files/roscoemarvinopn.pdf
CRIMINAL PROCEDURE: In DUI case, trial court properly determined that there was probable cause to believe that defendant was driving while intoxicated even if he passed field sobriety tests administered by law enforcement when defendant was involved in head-on collision which occurred mainly in opposing lane of traffic, victim told law enforcement that defendant was so far in her lane that she veered into his lane to try and avoid him, defendant smelled of alcohol and had red eyes, he acknowledged having consumed two 24-ounce beers, and several beer cans and half-empty whiskey bottle were found strewn from passengers side door of his car. State v. Crisp, 7/17/14, Nashville, Williams, 15 pages. http://www.tncourts.gov/sites/default/files/crispwaopn2.pdf
PUBLIC CHAPTER
COMMERCIAL LAW: Tennessee Nonprofit Corporation Act is updated and revised. 2014 PC 899, effective 1/1/15, 44 pages. http://www.tn.gov/sos/acts/108/pub/pc0899.pdf
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