TAM-BYTES

August 3, 2015
Vol. 18, No. 31
2015 TAM CLE CALENDAR

Webinars
Alimony Issues in Tennessee: An Update for Attorneys, 60-minute
audio conference presented by Kevin Shepherd, attorney in Maryville and
Franklin, on Wednesday, August 26, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Social Security Retirement Benefits: Looking at the Big Picture to
Benefit Your Client, 60-minute webinar presented by Michael Crowder,
with Kennerly, Montgomery & Finley, P.C. in Knoxville, on Thursday,
August 27, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Marketing Your Legal Practice: Websites, Blogs, and More, 60minute webinar presented by David Anthony, with Bone McAllester &
Norton PLLC in Nashville, on Thursday, August 27, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Limited Liability Companies in Tennessee: Drafting the Operating
Agreement, 60-minute webinar presented by Alexander J. Davie, with
Riggs Davie PLC in Nashville, on Wednesday, September 16, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Your Step-by-Step Guide to Advising Clients in Business Divorces in
Tennessee, 60-minute webinar presented by Richard Spore, with Bass,
Berry & Sims in Memphis, on Thursday, September 17, 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 Lisa K. Helton, with

Sherrard & Roe in Nashville, on Wednesday, September 30, 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 www.mleesmith.com

On-Site Events

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 25
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: 16th Judicial District Circuit Judge Mark Rogers; Laura
Baker, Law Offices of John Day; Brandon Bass, Law Offices of John Day;
Philip N. Elbert, Neal & Harwell; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson; Chris Tardio, Gideon, Cooper &
Essary; and Bryan K. Williams, Gullett Sanford Robinson & Martin
HIGHLIGHTS: Review of recent personal injury cases; constitutionality
of caps on damages; recent developments in healthcare liability pre-suit
notice and certificate of good faith requirements and ex parte
communications; trial judges dos and donts for arguing for or against a
motion for summary judgment; handling complex subrogation and lien
issues; social media, the internet, and ESI challenges; effective direct
examination, cross-examination, and redirect; deposition strategies
preparing for deposition, preparing the witness, and taking the deposition;
and interplay of ethics, evidence, and experts.
To learn more or to register, visit: www.mleesmith.com/tn-personal-injury-law.

Family Law Conference for Tennessee Practitioners

*Two dates in Nashville this year*
WHEN: Thursday & Friday, October 8 & 9 AND
Thursday & Friday, December 3 & 4
WHERE: Nashville Nashville School of Law
CLE: Earn all your CLE for 2015 up to 15 hours of GENERAL credit
and 3 hours of DUAL credit!!

OCTOBER FACULTY: Judge Don R. Ash, senior judge, Tennessee

Senior Program; Judge Mike Binkley, circuit court, 21st Judicial District
(Hickman, Lewis, Perry, and Williamson counties); Judge Philip Smith,
circuit court, Davidson County; and Judge Thomas Wright, circuit court,
3rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins counties);
along with attorneys David Garrett, Cheatham, Palermo & Garrett Law;
Barry Gold, McWilliams & Gold, Chattanooga; John J. Hollins, Jr.,
Hollins, Raybin & Weissman PC, Nashville; Cathy Speers Johnson,
Thompson Burton PLLC, Nashville; Stanley A. Kweller, Jackson, Kweller,
McKinney, Hayes, Lewis & Garrett, Nashville; Marlene Moses, MTR
Family Law, PLLC, Nashville; Linley Richter, Jr., Richter & Rasberry,
P.C., Memphis; Kevin Shepherd, Maryville attorney; Greg Smith, Stites &
Harbison PLLC, Nashville; and Jacob Thorington, Cheatham, Palermo &
Garrett Law, Nashville

*****************************************************
DECEMBER FACULTY: Judge Robert L. Childers, circuit court,
Shelby County; Judge Phillip Robinson, circuit court, Davidson County;
Judge Joseph Woodruff, circuit court, 21st Judicial District (Hickman,
Lewis, Perry, and Williamson counties); and Judge Thomas Wright, circuit
court, 3rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins
counties); along with attorneys Amy J. Amundsen, Rice, Amundsen &
Caperton PLLC, Memphis; David Garrett, Cheatham, Palermo & Garrett
Law; John J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville;
Cathy Speers Johnson, Thompson Burton PLLC, Nashville; Stanley A.
Kweller, Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville;
Marlene Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr.,
Richter & Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney;
Greg Smith, Stites & Harbison PLLC, Nashville; and Jacob Thorington,
Cheatham, Palermo & Garrett Law, Nashville
HIGHLIGHTS: Protecting a clients separate assets; valuing and dividing
marital property; access to mental health records in a custody case; special
issues in military divorce; practical tips from judges on issues such as
attorney fees, contempt, and child custody modification; marketing yourself
and your law firm; social media tips and tricks; domestic violence cases and
mediation; cohabiting couples and same-sex marriages; attorney fees in
family matters and contempt; case law/legislative update; and ethical
considerations in family law.
To learn more or to register, visit: http://www.mleesmith.com/family-law-15.

Probate & Estate Planning Conference for Tennessee

Attorneys
WHEN: Thursday & Friday, October 22 & 23
WHERE: Nashville Nashville School of Law
CLE: Earn all your CLE for 2015 up to 15 hours of GENERAL credit
and 3 hours of DUAL credit!!
FACULTY: Rebecca Blair, The Blair Law Firm, Brentwood; Julie A.
Boswell, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville;
Jennifer Surber, Surber, Asher, Surber & Moushon, PLLC, Nashville;
Harlan Dodson, Dodson, Parker, Behm & Capparella P.C., Nashville;
Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville; David
Heller, Martin Heller Potempa & Sheppard, Nashville; Steve McDaniel,
Wyatt Tarrant & Combs LLP, Memphis; John McDonald, Evans, Jones &
Reynolds, PC, Nashville; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Joel D. Roettger, Gentry, Tipton & McLemore,
P.C., Knoxville; Stacy Roettger, The Trust Company of Knoxville,
Knoxville; Brian S. Shelton, Bradley Arant Boult Cummings LLP,
Nashville; Alexander M. Taylor, Kennerly Montgomery & Finley, P.C.,
Knoxville; and Matthew Thornton, Bourland, Heflin, Alvarez, Minor &
Matthews, PLC, Memphis
HIGHLIGHTS: Advanced estate planning tips; checklists with trust
drafting tips; estate planning with trusts; will drafting tips - planning
opportunities and challenges for 2015 and beyond; planning for digital
assets; revocable trusts versus traditional will; planning for a gradual
transfer of land within the family; features of properly designed grantor
trust for Medicaid and veterans planning; minimizing fees and costs by
utilizing alternatives to probate; how to use retirement assets in estate
planning; strategies for resolving TennCare claims; trusts, estate
planning, and probate update; tips for practicing in probate court; ethical
issues arising in estate planning and estate administration, such as client
confidentiality, billing inquiries, and other difficult-to-resolve dilemmas;
and sample forms and checklists.
To learn more or to register, visit: http://www.mleesmith.com/probate.

Tennessee Real Estate Law Conference

WHEN: Friday, October 30
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Kim Brown, Sherrard & Roe; Christopher S. Dunn, Waller,
Lansden, Dortch & Davis; Robert C. Goodrich Jr., Burr & Forman; Lisa
Helton, Sherrard & Roe; Zachary Miller, Burr & Forman; C. Palmer
Pillans, Butler Snow; Marcy Shelton, Gullett Sanford Robinson & Martin;
Wes Turner, Gullett Sanford Robinson & Martin; and Dudley M. West,
White & Reasor, PLC.
HIGHLIGHTS: Drafting commercial leases; commercial development and
financing; mechanics and materialmens liens; commercial foreclosure
issues; hot topics in title insurance; consumer mortgages and the impact of
the new CFPB rules; ethical considerations in real estate law; and real estate
case law/legislative update
To learn more or to register, visit: www.mleesmith.com/tn-real-estate-2015.

Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, November 12 & 13
WHERE: Nashville -- Marriott Franklin/Cool Springs
CLE: Earn all your CLE for 2015 up to 15 hours of GENERAL credit
and 3 hours of DUAL credit!!
FACULTY: Judge Frank Clement, Court of Appeals, Middle Section;
Judge Joseph P. Binkley, Circuit Court, Davidson County; Chancellor
Ellen Hobbs Lyle, Chancery Court, Davidson County; Chancellor Russell
T. Perkins, Chancery Court, Davidson County; David Anthony, Bone
McAllester & Norton PLLC; Laura Baker, Law Offices of John Day P.C.;
Dale Conder, Rainey Kizer Reviere & Bell PLC; Dan Coughlin,
Massengill, Caldwell & Coughlin PC; Griffin Dunham, Emerge Law PLC;
Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; Candi Henry, Dodson Parker Behm & Capparella PC;
Randy L. Kinnard, Kinnard, Clayton & Beveridge; Brenton H. Lankford,
Stites & Harbison PLLC; Matt Potempa, Martin Heller Potempa &
Sheppard; and Richard Spore, Bass, Berry & Sims PLC

HIGHLIGHTS: Overview of Tennessees new business court; recent

developments in healthcare liability; use of judgment liens on real and
personal property; family law highlights; tips on handling
uninsured/underinsured motorist claims; sophisticated deposition strategies;
rules that practitioners seldom encounter; representing a client in a business
divorce; using websites and social media to promote your law practice;
probating wills and administering estates; pretrial motion practice; the
deferential abuse of discretion standard of review; update from the Board of
Professional Responsibility; ethics and evidence; and professionalism in the
practice of law.
To learn more or to register, visit: http://www.mleesmith.com/lawconference-2015.

IN THIS WEEKS TAM-Bytes

Supreme Court rules appellants acquired title to disputed property
under doctrine of title by prescription when appellants enjoyed
exclusive possession of property for more than 20 years, appellees
were not under any disability for those years, and appellees offered no
evidence that they granted appellants permission to possess property;
Supreme Court holds that although trial court, in rape of child case,
erred by requiring prosecution to elect specific facts about type of
sexual penetration it was relying upon, error did not rise to plain error
warranting overturning jurys verdict;
Supreme Court affirms attorneys 180-day supervision from practice
of law when attorney had more than 30 years experience as licensed
attorney, but failed to adhere to duty required of attorneys under Rules
of Professional Conduct based on his multiple rule violations, his
prior disciplinary record, his repeated inability to follow court orders,
and his refusal to acknowledge his misconduct;
Workers Comp Appeals Board says employees discovery of hernia
on morning after he lifted heavy items at work was sufficiently
immediate for purposes of TCA 50-6-212(a)(2);
Court of Appeals rules father, who was designated by permanent
parenting plan as alternative residential parent, lacked standing to
maintain claim for medical expenses related to childs injury or to
seek compensation for loss of childs service through claim for loss of
childs earing capacity during minority, but says father, as childs
parent, may maintain action as childs next friend;

 Court of Appeals holds that neither lack of physical examination nor

absence of criminal charges being filed prevent trial court from
terminating parental rights on ground of severe child sexual abuse;
and
Court of Criminal Appeals reverses convictions for simple possession
of dihydrocodeinone and marijuana when trial court erred by
instructing jury that simple possession offenses could be committed
with mens rea of recklessness.
SUPREME COURT
PROPERTY: In property dispute involving Tract I of James Farm in
Loudon County, because appellants have enjoined exclusive and
uninterrupted possession of Tract I for more than 20 years, claiming land as
their own and without any accounting to appellees, and because appellees
were not under any disability for those years and have not offered any
evidence that appellants occupancy was by virtue of their permission, either
express or implied, appellants have acquired title by prescription to Tract I,
less quarter-acre parcel conveyed to third parties; term disability in
context of title by prescription, means either disability by minority or by
incapacity, but not lack of knowledge of disability. Roberts v. Bailey,
7/31/15, Knoxville, Wade, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/robertsarthuropn.pdf

CRIMINAL PROCEDURE: In rape of child case, although trial court erred

by requiring prosecution to elect specific facts about type of sexual penetration
it was relying upon, and not just date, place, and identifying information, and
trial court repeated error during its jury instructions, election of facts was
unnecessary because jurors are not required to agree upon type of sexual
penetration to convict; inaccuracy in prosecutions election and jury instruction
is of little consequence in context of this case and simply does not rise to level
of plain error which warrants overturning jurys verdict. State v. Knowles,
7/31/15, Jackson, Clark, dissent by Wade, 22 pages.
http://www.tncourts.gov/sites/default/files/knowlesc_opn.pdf
http://www.tncourts.gov/sites/default/files/knowlesc_dis.pdf

PROFESSION OF LAW: In case in which attorney, who had more than 30

years of experience as licensed attorney, undertook representation of two
clients with conflicting interests and continued to represent both clients even
after being publicly censured, because attorneys conduct was egregious,
imposition of 180-day suspension of attorneys law license was proper
sanction. Cody v. Board of Professional Responsibility, 7/27/15, Nashville,
Lee, 4-0, 10 pages.
http://www.tncourts.gov/sites/default/files/codyh.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee, truck driver, as he
secured steel coils to back of his flatbed truck on 10/21/11, began suffering
chest pains, later pulled over at truck stop for help, and was taken to hospital
and diagnosed with heart attack, evidence did not preponderate against trial
courts finding that heart attack was causally related to employees work
activity that morning; evidence did not preponderate against trial courts
finding that employees fainting spells were causally related to his 10/21/11
heart attack; evidence did not preponderate against trial courts finding that
employee is permanently and totally disabled; employer contends that law,
effective 7/1/14, providing that injury arises primarily out of and in course
and scope of employment only if it has been shown by a preponderance of
the evidence that the employment contributed more than fifty percent (50%)
in causing the injury, considering all causes, should apply retroactively to
employees 10/21/11 injury, but legislature established 7/1/14 as effective
date for this new definition, and there is no indication amendment was
intended to be applied retroactively. Marvel v. Roane Transportation
Services LLC, 7/23/15, Knoxville, Lee, 12 pages.
http://www.tncourts.gov/sites/default/files/marvelc.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Evidence did not preponderate against
trial courts finding that employee met requirements of hernia statute, TCA
50-6-212, when employee lifted and stacked hundreds of 46-inch decks that
weighed 60 to 70 pounds each while at work on 1/2/15 and experienced
funny feeling in his groin and noticed bulge in his groin next morning;
employees discovery of hernia on morning after he lifted heavy items at
work was sufficiently immediate for purposes of TCA 50-6-212(a)(2); for
purposes of requirement that hernia have immediately followed the
accident, immediately does not necessarily mean instantaneously;
employees failure to file supporting affidavit with his Request for
Expedited Hearing as required by Rule 0800-02-21-.14(1)(a) was not raised
in trial court and, consistent with established law, issue was waived. Long v.
Hamilton-Ryker, 7/31/15, Davidson, 21 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1143&context=utk_workerscomp

COURT OF APPEALS
TORTS: When minor child injured his finger while participating in
woodworking shop activity at facility operated by Boys and Girls Club of
Greater Kingsport, childs father and mother originally filed joint action as
next friends of child, naming as defendants Boys and Girls Club of Greater
Kingsport and United Way of Greater Kingsport, parents nonsuited original
suit, and childs father filed suit as next friend of child, seeking damages for
permanent impairment, pain and suffering, medical expenses, and loss of
earning capacity, trial court did not err by finding that father lacked standing to
maintain claim for medical expenses related to childs injury when parties
permanent parenting plan designated father as alternative residential parent
with 111 days annually of residential co-parenting time with child, plan
designated mother as childs primary residential parent, and child resides with
mother greater percentage of time; to extent that father through present suit
may have sought compensation for loss of childs service through claim for
loss of childs earning capacity during minority, trial court properly found that
father did not have standing to maintain such claim; according to plain
language of TCA 36-6-410, primary residential parent is one with legal
custody for purpose of interpreting which parent has sole right to maintain
action for expenses and actual loss of service resulting from injury to minor
child as set forth in TCA 20-1-105(b); no Tennessee rule of law precludes
father, as childs parent, from maintaining action as childs next friend. Neale
v. United Way of Greater Kingsport, 7/28/15, ES, Frierson, 15 pages.
http://www.tncourts.gov/sites/default/files/neale_opinion.pdf

EMPLOYMENT: In suit against former employer and former employee

(Pearson) in which plaintiff claims that, while plaintiff worked for employer,
she was subjected to pattern of unwanted sexual harassment by Pearson, trial
court properly granted employer summary judgment on plaintiffs hostile
work environmental claim when, while Pearsons comments were
inappropriate, employer had no tangible evidence to verify that they were
actually made, employer was forced to analyze conflicting stories by
plaintiff and Pearson and render decision based wholly upon uncorroborated
testimony by two opposing parties, and employers decision to prohibit oneon-one contact between Pearson and plaintiff and restrict Pearsons access to
office is objectively reasonable in light of evidence actually available to
employer during investigation; employer cannot be faulted for failing to
analyze incriminating evidence that was never made available to it prior to
plaintiffs decision to leave company, incriminating evidence which was
solely in possession and under control of plaintiff. Bazemore v.
Performance Food Group Inc., 7/30/15, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/bazemore_v._pfg.pdf

PROPERTY: When plaintiffs sold commercial real property to defendants

in 2009, property was improved with retail business, total purchase price
was $215,000, defendants executed two notes, one of which was for
$175,000, secured by deed of trust on property, defendants defaulted in
2011, plaintiffs bid in property at foreclosure sale for $20,000, and plaintiffs
filed suit seeking deficiency judgment, evidence preponderated in favor of
trial courts conclusion that fair market value of property at time of
foreclosure sale was $89,000, price property was resold for one and one-half
months after foreclosure sale; $89,000 price is relevant to establish fair
market value because of absence of other potentially relevant proof, such as
appraisal of property around time of foreclosure sale, short period of time,
49 days, that elapsed between foreclosure sale and resale, and plaintiff
husbands admission to effect that no significant changes to property
occurred between two sales; foreclosure sale price of $20,000 is materially
less than fair market value of $89,000 under applicable statute as
foreclosure sale price was approximately 78% less than propertys fair
market value; amount of indebtedness under promissory note was $171,620
and costs of foreclosure sale were $2,000, yielding total of $173,620;
subtracting fair market value of $89,000 under statutory formula results in
deficiency judgment for plaintiffs of $84,620. Cutshaw v. Hensley, 7/29/15,
ES, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/cutshaw_v_hensley.pdf

PROPERTY: In suit by bank asserting that defendants fraudulently

conveyed real property in Tennessee in effort to defraud bank and to evade
collection of Wisconsin state court judgment against Shea, trial court
properly granted bank summary judgment, setting aside conveyance as
fraudulent and declaring deed from Shea to her father null and void;
Tennessee law generally provides that life insurance payable to spouse or
children of decedent passes to such person without being subject to debts of
decedent, but life insurance proceeds are not exempt from claims of
creditors of surviving beneficiaries; bank was direct creditor of Shea under
guaranty, and despite fact that basis of Wisconsin judgment was debt that
originated from construction loan agreements and mortgage, Sheas personal
guarantee makes policy benefits subject to claims of bank, and hence, Shea
cannot claim exemption pursuant to TCA 56-7-203. State Bank of
Reeseville v. Shea, 7/28/15, ES, McClarty, 4 pages.
http://www.tncourts.gov/sites/default/files/sheaopn.pdf

ESTATES & TRUSTS: When, prior to her death, decedent commenced

suit against her son to recover value of new home she constructed on sons
property, after decedents death, administrator continued to pursue action but

later concluded that estate did not have sufficient assets to continue
prosecuting claim, administrator agreed to settlement with decedents son,
when motion seeking court approval of settlement was filed, decedents
daughter opposed settlement, administrator, decedents daughter, and her
attorneys entered into agreement stating that daughters attorneys would at
no cost to estate, prosecute this matter to trial and that all [of attorney}
fees and expenses shall be the responsibility of [daughter], attorney
prosecuted matter to trial and estate prevailed, son appealed and judgment
was reversed and case remanded for new trial, estate prevailed on remand,
while second appeal was pending, son filed for bankruptcy, probate court
allowed trustee to be substituted for son, attorneys who represented estate in
trial of underlying action and both appeals filed motion for fees and
expenses, administrator for estate did not file objection to fees or inform
probate court or trustee of retainer agreement, trial court awarded $178,598
in attorney fees and expenses and assessed all of fees against estate, and
trustee, having learned of retainer agreement, filed motion to set aside order,
trial court did not err in assessing attorney fees incurred through trial to
daughter and all fees incurred thereafter to estate; retainer agreement is
unambiguous as to those fees and costs incurred to prosecute this matter to
trial, but is ambiguous as to subsequent fees; since retainer agreement does
not unambiguously state parties intentions regarding payment for attorneys
services after trial, court may consider parol evidence; parties intent was
that estate be liable for attorney fees and expenses incurred after trial. In re
Estate of Ross, 7/28/15, MS, Clement, 13 pages.
http://www.tncourts.gov/sites/default/files/ross_v_stooksbury_2015-07-27.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

termination of parents parental rights to their four children on ground of
severe child abuse when children were removed from parents home after
being found with numerous ailments, including severe flea bites, lice, and
decayed, black, broken and abscessed teeth, and three of children testified to
having been sexually abused in that mother and father had touched their
private parts and made them touch others; neither lack of physical
examination being performed on children nor absence of criminal charges
relating to sexual abuse being filed against parents prevent trial court from
terminating parental rights on ground of severe child sexual abuse. In re
C.A.F., 7/29/15, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/inrecafopn.pdf

FAMILY LAW: When court elects to reallocate guardian ad litem fees and
expenses at conclusion of proceedings, Supreme Court Rule 40A expressly
requires trial court to consider factors stated in subsection (4) of rule, to make
findings of fact, and to state those findings in order allocating fees and expenses

 rules does not expressly identify courts responsibilities if only allocation of

fees and expenses occurs at conclusion of hearing; Supreme Court Rule 40A
expressly requires consideration of factors stated in subsection (4) of rule and to
make findings of fact and to state those findings in order allocating fees and
expenses rules does not expressly identify courts responsibilities if only
allocation of fees and expenses occurs at conclusion of hearing. Cremeens v.
Cremeens, 7/24/15, MS, Clement, 17 pages.
http://www.tncourts.gov/sites/default/files/cremeensleslie.opn__0.pdf

CIVIL PROCEDURE: When plaintiff fell at defendants restaurant on

2/27/07, plaintiff and her husband timely filed suit in 2/08, plaintiff filed
notice of voluntary nonsuit on 9/13/10, court entered Order of Dismissal
without prejudice on 9/17/10, according to affidavit of plaintiff's counsel,
plaintiffs refiled complaint on 9/16/11 and attempted service of complaint by
certified mail, no card evidencing receipt of complaint was returned to
plaintiffs counsel, plaintiff caused subsequent summons to be issued on
9/13/12, it was not served, trial court notified parties on 5/2/13 that, because
suit had been pending for more than one year, it would be dismissed unless
within 30 days, motion to set is filed and heard or specific permission is
obtained from court for case to be exempted from one-year rule, and
plaintiffs filed motion to exempt from one-year rule on 5/24/13, and
plaintiffs caused summons to be issued on 5/30/13, which was duly served,
evidence produced by plaintiff preponderates against trial courts finding
that plaintiffs intentionally delayed service of process; statements of
plaintiffs counsel attest that plaintiffs timely refiled complaint and, upon
filing, issued summons in accordance with TRCP 4.01(1), affidavit records
additional efforts made to secure service, and while plaintiffs should have
been more diligent in their efforts, defendant failed to introduce any
evidence contrary to matters stated in counsels affidavit or to show in any
other fashion that plaintiffs intentionally delayed service of process. Wright
v. Shoneys Tenn1 LLC, 7/28/15, MS, Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/wrightdiane.opn_.pdf

CRIMINAL SENTENCING: In case in which Knox County magistrate

adjudicated minor delinquent for aggravated burglary and theft, magistrate
did not abuse discretion in requiring minor to pay $9,665 in restitution to
victim at rate of $75 per month; while restitution statute applicable to
criminal cases requires trial court to consider financial resources and future
ability of the defendant to pay or perform when ordering restitution,
relevant statute applicable in juvenile cases does not contain same provision;
while other jurisdictions have limited amount of restitution applicable in
juvenile cases and provided avenue in which parents may be held
responsible for juveniles restitution, such is not case in Knox County, and

we decline to adopt rule establishing otherwise. In re Cassie C., 7/28/15,

ES, McClarty, 5 pages.
http://www.tncourts.gov/sites/default/files/cassieopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of attempted
especially aggravated robbery, aggravated robbery, carjacking, reckless
endangerment (as lesser included offense of aggravated assault), and three
counts of aggravated assault, because felony reckless endangerment is not
lesser included offense of charged offense, i.e., aggravated assault,
defendants reckless endangerment conviction is reversed, with case
remanded for new trial on remaining lesser included offense of assault;
defendants dual convictions for aggravated robbery and carjacking of same
victim did not violate double jeopardy; because aggravated robbery and
carjacking each contains element that other does not, legislature must have
intended separate punishments for two takings that occurred, i.e., taking of
victims keys and taking of victims van; when person offers no evidence
against criminal defendant, that person is not witness against accused, and
persons status as victim does not alter that fact. State v. Logan, 7/27/15,
Nashville, Witt, 21 pages.
http://www.tncourts.gov/sites/default/files/loganmichaelanthonyopn.pdf

CRIMINAL LAW: In case in which defendant was found not guilty by

reason of insanity for offenses of first degree premeditated murder, attempted
first degree murder, and aggravated assault, trial judge ordered defendant to
be transported to Middle Tennessee Mental Health Institute (MTMHI),
defendant was subsequently discharged from MTMHI with requirement that
he participate in mandatory outpatient treatment, and trial court found that
defendant had not complied with his mandatory treatment plan, trial court did
not err in eventually ordering that defendant be permanently recommitted to
MTMHI when state offered clear, unequivocal, and convincing evidence that
defendants continued hospitalization was necessary, and defendant maintains
right to file motion pursuant to TCA 33-6-708 to ensure that his continued
hospitalization is warranted. State v. Mallady, 7/29/15, Nashville,
Wedemeyer, Holloway not participating, 14 pages.
http://www.tncourts.gov/sites/default/files/malladykennethopn_0.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

aggravated child neglect in connection with offense committed against
daughter of his brothers girlfriend when defendants brother, not defendant,
burned victim by submerging her into hot water while at his girlfriends
residence, there was no indication that defendant was present when victim

was injured, defendant and his girlfriend (Bennett) had only seen victims
injuries once while victim and her mother were at defendants
grandmothers house, after seeing injuries, defendant and Bennett went to
store to purchase supplies to treat injuries, and state presented no evidence
that defendant intended to establish in loco parentis relationship with victim;
because defendant bore no legal duty to victim and was, therefore, not
vested with a specific duty to prevent neglect of victim, defendants
aggravated child neglect conviction is reversed, and charge is dismissed;
violation of duty to report under TCA 37-1-412 is not lesser included
offense of aggravated child neglect. State v. Higgins, 7/27/15, Nashville,
Witt, 16 pages.
http://www.tncourts.gov/sites/default/files/higginsdonaldwiiiopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of possession

of 26 grams or more of cocaine with intent to sell, simple possession of
dihydrocodeinone, and simple possession of less than .5 ounce of marijuana,
trial court erred by instructing jury that simple possession offenses could be
committed with mens rea of recklessness; because incorrect jury instruction
regarding appropriate mental state for crimes of simple possession of
dihydrocodeinone and simple possession of marijuana lessened states
burden of proof, error was not harmless; defendants two simple possession
convictions are reversed, and case is remanded for new trial on those
charges. State v. Blye, 7/30/15, Knoxville, Ogle, 17 pages.
http://www.tncourts.gov/sites/default/files/blyebrentallenopn.pdf

CRIMINAL PROCEDURE: Post-conviction court did not err in granting

petitioner relief on basis that trial counsel provided ineffective assistance by
failing to seek severance; once it became known that co-defendant would
testify for state, any basis for sound trial strategy for proceeding in joint trial
disappeared; states unanticipated calling of co-defendant as its own witness
and presence of co-defendants attorney as additional source of disparagement
of petitioners credibility and character made it essential for defendants to
have been tried separately in order to ensure petitioner received fair trial.
Bolton v. State, 7/29/15, Knoxville, Montgomery, 35 pages.
http://www.tncourts.gov/sites/default/files/boltoncurtisopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL LAW: Evidence was not sufficient to convict defendant of
knowingly receiving, distributing, and possessing child pornography when
defendant shared his home with two other people, both of whom could
access laptops Jamie account and Shareaza file-sharing program on
laptop where child pornography was found without entering passwords, and

laptop was found in common area of home; although jurors could reasonably
infer that defendant (James Paul Lowe) owned and occasionally used laptop
where child pornography was found from devices sole username, Jamie,
common diminutive of James, detectives testimony that laptop belonged
to defendant, and TBI agents testimony about visits to Yahoo! Email login page, without improperly stacking inferences, no juror could infer from
such limited evidence of ownership and use that defendant knowingly
downloaded, possessed, and distributed child pornography found on laptop.
United States v. Lowe, 7/28/15, Cook, 9 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0169p-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, who had been hanging
55-inch monitors in operating room at employer for several months, noticed
one day after work that he had no strength in his right arm, doctors
impression was Significant rotator cuff deficiency as evidenced by the high
right humeral head, and employer denied claim, asserting it did not arise
out of employment, it is unclear from medical standpoint whether work
caused injury or aggravated employees pre-existing arthritic shoulder
condition; employee has right to causation opinion to determine whether his
injury is acute work-related injury, aggravation of pre-existing arthriticshoulder condition, or is not work related; employer must provide employee
additional evaluation with doctor so that he may provide opinion on medical
causation as related to rotator cuff tear or refer him to orthopedic specialist
for opinion on causation. Moseley v. Vanderbilt Medical Center &
Vanderbilt University, 5/14/15, Baker, 8 pages.
http://www.tncourts.gov/sites/default/files/boltoncurtisopn.pdf

WORKERS COMPENSATION: Employee provided written notice

within 30 days of alleged 10/28/14 injury as required by statute when
employee reported injury to employer in letter dated 11/6/14, her letter
specifically states that she fell from the step ladder we have in Shipping,
and she felt, initially, that she did not need medical care but after a few
days, felt that she did; even if verbal reporting did not occur, employer
became aware of alleged injury within 30 days of 10/28/14 through
employees 11/6/14 letter, and employee provided written notice and proved
notice by fact that employer provided her panel of physicians. Jarrett v.
SRG Global, 5/12/15, Phillips, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1090&context=utk_workerscomp

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