Académique Documents
Professionnel Documents
Culture Documents
June 8, 2015
Vol. 18, No. 23
2015 TAM CLE CALENDAR
Webinars
Proving Defamation from the Use of Social Media: A Primer for
Attorneys, 60-minute webinar presented by Marcus Chatterton, with
Balch & Bingham in Birmingham, on Tuesday, June 30, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Maximizing Uninsured Motorist Coverage in Tennessee from the
Plaintiff's Perspective, 60-minute webinar presented by Laura Baker,
with the Law Offices of John Day in Brentwood, on Wednesday, July 8, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Landlord and Tenant Law: Evictions, Court, and
Litigation, 60-minute webinar presented by Joshua Kahane, with
Glankler Brown in Memphis, on Thursday, July 16, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee's New Business Court is Now Open for Business, 60minute webinar presented by Chancellor Ellen Hobbs Lyle, Davidson
County Chancery Court, on Thursday, July 23, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com
On-Site Event
SUPREME COURT
COMMERCIAL LAW: When parties executed installment contract for
manufactured home that included arbitration provision under which sellers
retained right to seek relief in judicial forum for limited purposes, after
taking possession of home, buyer filed suit against sellers for breach of
contract, and sellers filed motion to compel arbitration, trial court erred in
holding that sellers retention of judicial forum for limited purposes
rendered arbitration agreement unconscionable; Taylor v. Butler, 142 SW3d
277 (Tenn. 2004), did not adopt per se rule that any degree of non-mutuality
of remedies in arbitration provision in adhesion contract renders provision
unconscionable and unenforceable, and hence, ruling in Taylor is not
preempted by federal law; it is not necessary or prudent to overrule or
modify ruling in Taylor at this time; arbitration agreement at issue was not
unreasonably favorable to sellers or beyond the reasonable expectations of
an ordinary person, or oppressive or unconscionable when sellers
articulated reasonable business justification for carve-out for foreclosure
procedure on manufactured home. Berent v. CMH Homes Inc., 6/5/15,
Knoxville, Kirby, unanimous, 21 pages.
http://www.tncourts.gov/sites/default/files/berentra.opn_.pdf
COURT OF APPEALS
TORTS: When plaintiff walked from Radio Shack to seamstress shop, which
was owned by defendant, he crossed concrete parking bumper, strip of dirt
and grass, and stepped up approximately nine inches to reach concrete
parking landing at adjoining retail center, concrete parking landing had two
parking places, on other side of concrete parking landing, seamstress shops
parking lot is level with landing, except for three-foot section on right end of
landing, and on his way back to Radio Shack parking lot, plaintiff tripped on
three-foot section that is four inches lower than concrete parking landing,
trial court properly granted defendant, owner of seamstress shop, summary
judgment; because plaintiff was lawfully on defendants premises, defendant
owed duty to exercise reasonable care to prevent injury to him, but scope of
defendants duty of care did not extend to height variation between level of
concrete parking landing and parking lot for two reasons: It did not pose
unreasonable risk, and it was open and obvious condition. Boykin v. George
P. Morehead Living Trust, 5/29/15, MS, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/boykinrobertopn.pdf
FAMILY LAW: Trial court did not err by implicitly denying mothers
motion to dismiss termination of parental rights petition on basis of
improper venue when venue was proper in Weakley County county where
child resided when he and his half-sister were first subject to Department of
Childrens Services custody in 4/11; TCA 36-1-114(3)(A) is not limited to
childs residence immediately preceding removal of child statutes use of
past tense indicates that residency of child may be determined using prior
residence of child, so long as child resided there when he or she became
subject to care or control of child-caring agency; because no clear and
parenting time, including one weekend per month, winter holidays, and
extended summer parenting time, trial court abused discretion in ordering
mother to pay for transportation costs of child to visit father in Tennessee,
including cost of additional ticket for parent or guardian to fly with 3-yearold child, when trial court imputed annual income of $50,000 to mother
based on her education, ability to secure job, and money donated from her
relatives, while husbands annual income was $75,000, both parents
recommended to court that they equally share costs of transporting child to
facilitate fathers parenting time, and requiring mother to pay all costs of
transportation will significantly deplete, if not exceed, annual award of
child support to mother, which creates unjust result upon mother; parenting
plan is modified to extent that parties will share equally costs of
transporting child. Keown v. Keown, 5/29/15, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/keownm.opn_.pdf
FAMILY LAW: In case in which child, who was born in Russia in 2002,
was adopted by Tennessee resident (Hansen) in 2009, Hansen signed
agreement with World Association for Children and Parents (WACAP),
agreeing to remain financially responsible for all costs of care for the
child if he was removed from Hansens home, in 4/10, Hansen placed
unaccompanied child on one-way flight back to Russia, and in 5/10,
WACAP filed lawsuit against Hansen, who had since relocated to
California, in Bedford County circuit court, seeking child support and
damages arising out of alleged breach of adoption contract, Bedford County
circuit court lacked subject matter jurisdiction to modify its initial child
support order in 2/13 when interested parties left Tennessee in 2010, but
trial court did not impermissibly modify original child support order by
changing only intermediary designated to receive Hansens child support
payment original order required Hansen to pay $1,000 per month to
circuit court clerk, who would apparently send payment to designated
account in Russia, but trial courts 2/13 order required Hansen to pay same
amount by mailing payment to opposing counsel for forwarding to Russia;
this minor alteration constituted enforcement mechanism, specifying
manner of compliance with original support order in way that would most
effectively achieve payment for ultimate beneficiary in Russia; loss of
continuing exclusive jurisdiction does not deprive tribunal of power to
enforce arrearages that have accrued during existence of valid order. In re
Justin H., 5/29/15, WS at Nashville, Gibson, 13 pages.
http://www.tncourts.gov/sites/default/files/justinhopn.pdf
moved to have case removed to chancery court, and probate court granted
motion to remove, but chancery court sent case back to probate court,
because probate court and chancery court in Rutherford County have
concurrent jurisdiction over conservatorship proceedings, chancery court
lacked subject matter jurisdiction to determine any issues in conservatorship
once case was filed in probate court; TCA 16-15-732(b) does not provide
authority for this case, that was initially filed in probate court, to be
removed to chancery court; chancery court was correct to review procedure
by which case was removed to its court from probate court. In re
Conservatorship of Beasley, 5/28/15, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/beasleyt.opn_.pdf
move court for order requiring judgment debtor to show cause why
judgment should not be extended for additional 10 years; to conclude that
TRCP 69.04 causes automatic expiration of MVHO order after 10 years
would conflict with plain language of TCA 55-10-615(b) and established
precedent and would allow defendant to avoid prosecution by simple
expedient of failing to petition for restoration of his driving privileges. State
v. Parker, 6/1/15, Jackson, Witt, 6 pages.
http://www.tncourts.gov/sites/default/files/parkeranthenlopndoc.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