TAM-BYTES

April 3, 2017
Vol. 20, No. 14

TAM Webinars

2017 Tennessee Alimony Update: New Scenarios, Combinations,

and Awards, 60-minute webinar presented by Brent Lankford, with
Stites & Harbison in Nashville, on Thursday, May 18, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/alimony-051817
or call us at (800) 727-5257.

Valuing and Dividing Marital Property in Tennessee: An

Accountants Essential Update for Attorneys, 60-minute webinar
presented by Michael Costello, with Elliott Davis Decosimo in
Chattanooga, on Tuesday, May 23, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dividing-052317 or call us at
(800) 727-5257.

Immigration Issues and Juvenile Law in Tennessee Mastering the

SIJ Program and More, 60-minute webinar presented by Terry
Olsen, with The Olsen Law Firm in Chattanooga, on Wednesday, June
7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-060717
or call us at (800) 727-5257.

Business Divorce Update: Best Practices for Effective Client

Counsel, 60-minute webinar presented by Richard Spore, with Bass,
Berry & Sims in Memphis, on Wednesday, June 14, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/business-divorce-061417
or call us at (800) 727-5257.
Intellectual Property Laws in Business Transactions: Key
Considerations for Attorneys, 60-minute webinar presented by Kelly
Frey, with Frost Brown Todd in Nashville, on Thursday, June 15, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/intellectual-061517
or call us at (800) 727-5257.

Key Elements of Wills in Tennessee, 60-minute webinar presented

by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, June 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-061517
or call us at (800) 727-5257.

On-Site Event
Tennessee Business Law Conference
WHEN: THIS FRIDAY, MAY 19
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Alexander J. Davie, Riggs Davie PLC, Nashville; Charles G. (Chuck)

Fisher, VI, Grant, Kovalinka & Harrison, P.C., Chattanooga; Kelly Frey, Frost Brown Todd
LLC, Nashville; Michael Goode, Stites & Harbison, PLLC, Nashville; Justin Joy, Lewis,
Thomason, King, Krieg & Waldrop, P.C., Memphis; Ralph Levy, Jr., Dickinson Wright
PLLC, Nashville; Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business
Court; and Matthew Lyon, Lincoln Memorial University, Duncan School of Law, Knoxville

HIGHLIGHTS: Overview of the Tennessee Business Court Pilot Project; choosing the
right business entity to match your clients needs; mistakes to avoid in drafting LLC
operating agreements; drafting and negotiating business contracts, including
representations, warranties and indemnification; advantages and drawbacks of using a
Series LLC; tax consequences of limited liability company mergers, conversions, and
reorganizations; overview of the cyber threat landscape for businesses; new options for
raising capital for small companies; and corporate compliance and ethics identifying
and managing common business risks.

PRICING: $377 (full program) ($297 for any additional attendees from same firm)
*Take $50 off until April 7 (early bird discount)*

For more information, visit www.mleesmith.com/tblc or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court rules judicial secretarial assistant is at-will employee

whose employment can terminate at any time at will of either
administrative assistant or judge and whose employment terminates
when judge who hired assistant is no longer serving as judge;
Supreme Court upholds constitutionality of states lethal injection
protocol for carrying out executions in state;
Court of Appeals affirms jury verdict in favor of defendants in
healthcare liability action alleging that defendant doctor negligently
caused injury to plaintiffs small bowel during open hysterectomy;
Court of Appeals, in case in which decedents automobile drove into
plaintiffs business, striking gas meter and starting fire, affirms
summary judgment in favor of decedents estate on plaintiffs claim
for negligent infliction of emotional distress;
Court of Appeals, in modification action, says some of restrictions
placed on mothers communication with child were overly broad, e.g.,
prohibitions against any references by mother to Father at all on
social media or discussions of adult-only issues beyond those
referenced in injunction;
Court of Appeals affirms trial courts award to wife of $5,000 per
month as alimony in futuro as well as alimony in solido of $4,500 per
month for 10 years when parties had been married 26 years, husband
was medical doctor and wife had not worked outside home since birth
of parties eldest daughter in 1992;
Court of Appeals says employer allowances or reimbursements for
business expenses, i.e., fringe benefits, may be considered income
for child support purposes if recipient receives some personal benefit
from payments; and
Court of Criminal Appeals says fact that defendants bedroom door
was open was not, standing alone, sufficient to justify search and
establish that other two defendants possessed common authority over
defendants private bedroom.

SUPREME COURT

GOVERNMENT: Trial judges secretarial assistant is at-will employee,

and hence, secretarial assistants employment may be terminated at any time
during term of trial judge to whom he or she is assigned, either by judge or
secretarial assistant; if relationship is not terminated during trial judges
term, secretarial assistants employment automatically terminates when trial
judges service ends; because plaintiffs secretarial assistants employment
automatically ended when trial judges term ended as result of election
defeat and because she remained employed until end of trial judges term, as
matter of law, defendant, new judge, did not tortiously interfere with
plaintiffs employment relationship when he advised plaintiff that he had
selected another person to fill position of secretarial assistant and would not
require her services after taking office. Moore-Pennoyer v. State, 3/28/17,
Knoxville, Clark, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/moore-pennoyerj_opn.pdf

CRIMINAL SENTENCING: In case in which plaintiffs, 33 inmates who

were each convicted of first degree murder and sentenced to death, filed suit
challenging states lethal injection protocol used in carrying out death
sentences, trial court did not err in concluding that plaintiffs failed to carry
their burden of demonstrating that protocol, on its face, violates
constitutional prohibitions against cruel and unusual punishment under
either state or federal constitution; plaintiffs failed to demonstrate that
protocol creates substantial risk of serious harm or substantial risk of
lingering death for inmate; trial court did not err in dismissing plaintiffs
claims that protocol requires state to violate federal drug laws. West v.
Schofield, 3/28/17, Nashville, Bivins, unanimous, 27 pages.
http://www.tncourts.gov/sites/default/files/weststephen.opn__0.pdf

COURT OF APPEALS

TORTS: In healthcare liability suit in which plaintiff contended that

defendant doctor negligently caused injury to plaintiffs small bowel during
open hysterectomy, material evidence supported jury verdict in favor of
defendants when jury heard evidence that defendant doctor conformed to
standard of care of OB/GYN surgeon in her assessment of plaintiffs
medical history, in her recommendation to plaintiff of minimally invasive
procedure, in her performance of hysterectomy including trocar placement
away from areas known to have bowel adhesions, in her decision to proceed
with surgery when no assisting surgeon was available to help in order to
minimize blood clotting risks, and in her recognition of bowel injury and
taking appropriate action on third operative day once symptoms arose; trial
court did not abuse discretion in precluding plaintiffs from raising issue of
best possible care during cross-examination of plaintiffs expert. Bradley
v. Bishop, 3/30/17, Jackson, Stafford, 24 pages.
http://www.tncourts.gov/sites/default/files/bradleychristyopn.pdf
TORTS: When Leggetts automobile drove into plaintiffs antique business,
gift shop, and garden center, struck gas meter, and started fire, which
destroyed business, and plaintiff filed suit against Leggetts estate
(defendant), trial court properly granted summary judgment to defendant on
negligent infliction of emotional distress claims; when Leggetts negligence
resulted in property damage and plaintiff did not allege or show fraud,
malice, or like motives on Leggetts part, law does not permit recovery for
plaintiffs emotional injuries. Lane v. Estate of Leggett, 3/29/17, Nashville,
Dinkins, 8 pages.
http://www.tncourts.gov/sites/default/files/lane.richard.opn_.pdf

EMPLOYMENT: When plaintiff, former lieutenant-colonel in Tennessee

National Guard, left Tennessee National Guard to attend Naval War College
on active duty tour, he sought to return to Tennessee National Guard in 2011
but was allegedly only offered traditional guardsmans position, plaintiff
separated from Tennessee National Guard on 7/10/11, plaintiff filed suit
pursuant to Uniformed Services Employment and Reemployment Rights
Act, 38 USC 4301 et seq. (USERRA), which forbids employment
discrimination on basis of membership in armed forces, trial court dismissed
suit for lack of subject matter jurisdiction, dismissal was affirmed on appeal,
Tennessee General Assembly, effective 7/1/14, adopted TCA 29-20-208,
which removes immunity of governmental entity for USERRA claim, and
employee filed new suit asserting that Tennessee National Guards failure to
rehire him in 2011 violated USERRA and TCA 29-20-208, trial court erred
in dismissing case; TCA 29-20-208 does not place impermissible limit on
the period for filing claim when immunity is removed, does not conflict
with USERRA, and does not violate Supreme Clause; plaintiffs cause of
action did not accrue until 7/1/14, when he attained right to sue pursuant to
judicial remedy created by TCA 29-20-208. Smith v. Tennessee National
Guard, 3/31/17, Nashville, Gibson, dissent by McBrayer, 16 pages.
http://www.tncourts.gov/sites/default/files/smith.david_.opn_.pdf
http://www.tncourts.gov/sites/default/files/smith.david_.diss_.opn_.pdf

INSURANCE: Trial court properly held that material misrepresentations

made by plaintiffs on their application for property owners insurance
increased risk of loss, thereby causing insurance policy to be void pursuant
to TCA 56-7-103, when application asked not just one but three separate
questions along same line in attempt to determine whether applicant had any
pending legal action, ever had been charged with, convicted of, or pled
guilty to felony, or ever had been charged with, convicted of, or pled guilty
specifically to arson, fraud, theft, or drug-related crime of any type, and
plaintiffs answered no to each question although one plaintiff had
pending legal action against him as he had been indicted on felony charges
and specifically on drug-related charges. Freeze v. Tennessee Farmers
Mutual Insurance Co., 3/28/17, Knoxville, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/ronald_g._freeze_v_tn_farmers_opinion.pdf

FAMILY LAW: Trial court did not err in finding that limited
conservatorship allowing forcible treatment in event that treatment serves
prisoners needs was least restrictive means of furthering Tennessee
Department of Corrections (TDOCs) compelling interest in light of
doctors medical opinion that prisoner is suffering from mental disorder that
prevents him from making his own healthcare decisions, evidence in
guardian ad litems report that prisoner suffers from delusions and other
mental health issues that are ameliorated when he is medicated, lack of any
evidence in record concerning less restrictive alternative by which TDOC
can further its compelling interest in safekeeping of prisons and prisoners,
and lack of transcript or statement of evidence from which appellate court
could independently review evidence presented at trial. State Department of
Correction v. Todd, 3/31/17, Nashville, Stafford, 13 pages.
http://www.tncourts.gov/sites/default/files/stateoftndoc.v.g.todd_.opn_.pdf

FAMILY LAW: With regard to ground of abandonment by willful to pay

support in termination proceeding, burden is not on parent to demonstrate
inability to pay, rather, burden is on petitioner to prove by clear and
convincing evidence that parent had capacity to pay, made no attempt to do
so, and had no justifiable excuse for not doing so; simply showing that
parent worked at some point during four-month period prior to filing of
termination petition, does not, by itself, mean that parent had ability to pay
child support. In re Sophia P., 3/30/17, Nashville, Gibson, 18 pages.
http://www.tncourts.gov/sites/default/files/inresophiap.opn__0.pdf

FAMILY LAW: In case in which trial court modified parenting plan to

designate father, instead of mother, as childs primary residential parent,
some of restrictions placed on mothers communication with child were
overly broad or vague; juvenile courts injunction is modified to remove
prohibitions against (a) any references by mother to Father at all on social
media or (b) discussions of adult-only issues beyond those topics
specifically referenced in injunction; trial court did not err by limiting
mothers visitation with child when evaluation performed on mothers home
found home to be inappropriate for raising a child, and placing limitations
on amount of time child spent in mothers home was necessary until mother
could demonstrate that she had improved homes condition. Gider v.
Hubbell, 3/29/17, Nashville, McBrayer, 18 pages.
http://www.tncourts.gov/sites/default/files/gider.sinan_.opn__0.pdf

FAMILY LAW: Evidence did not preponderate against trial courts award
to wife of $5,000 per month as alimony in futuro as well as alimony in solido
of $4,500 per month for 10 years when parties had been married 26 years,
husband was medical doctor who operated thriving medical practice, earning
$600,000 or more per year, while wife had completed bachelors degree and
at least completed coursework toward Masters degree but had not worked
outside home since birth of parties eldest daughter in 1992, and wife had no
income and no reasonable employment opportunities; trial court properly
determined that neither rehabilitative nor transitional alimony would suffice
to bridge economic gap between parties when husband presented no evidence
that wife had capacity for self-sufficiency with only need for short-term
financial assistance to adjust to the economic consequences of a divorce;
trial courts judgment is modified to provide for lien to be imposed upon
husbands assets in amount of $540,000 in order to secure alimony in solido
award to wife; trial courts judgment is modified to reduce amount of
husbands court-ordered life insurance obligation from $1 million to
$500,000, which is sufficient to secure husbands alimony in futuro
obligation. Stratienko v. Stratienko, 3/31/17, Knoxville, Frierson, 28 pages.
http://www.tncourts.gov/sites/default/files/stratienko_v_stratienko_opinion.pdf

FAMILY LAW: Trial court did not abuse discretion by refusing to relieve
husband from portion of his child support arrearage due to his
unemployment; once child support payments become due, they cannot be
altered, reduced, or forgiven by courts, and any award of less than full
amount of child support arrearage would have amounted to retroactive
modification of valid child support order; employer allowances or
reimbursements for business expenses, i.e., fringe benefits, may be
considered income for child support purposes if recipient receives some
personal benefit from payments; because husband testified that employer
reimbursement for his cellular telephone expenses only covered required
expenses for his work, trial court erred by including husbands cellular
telephone reimbursement as part of his net income for child support
purposes. Lee v. Lee, 3/31/17, Nashville, McBrayer, 15 pages.
http://www.tncourts.gov/sites/default/files/lee.terry_.opn_.pdf

CIVIL PROCEDURE: In suit by numerous individuals, some next of kin

and some who had contracted for funerals of loved ones, against certain
funeral homes alleging that funeral homes abandoned human remains to
unlicensed cemetery, where remains were disposed of improperly, chancery
court did not abuse discretion in granting class certification when trial court
found that common issues predominate and that class action was superior
method for proceeding with case, central issue in case moving forward is
whether funeral home has duty beyond dropping off human remains at
cemetery, this issue is common to all parties in case, trial court found it
better to proceed toward adjudicating that question as class action, and
alternative potentially is hundreds of separate trials with contradictory
results. Wofford v. M.J. Edwards & Sons Funeral Home Inc., 3/29/17,
Jackson, Swiney, 26 pages.
http://www.tncourts.gov/sites/default/files/woffordakilahlouiseopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted of

two counts of rape, one count of attempted rape, and one count of robbery,
although prosecutors statement to jurors during closing argument
regarding jurys consideration of lesser included offenses was improper,
prosecutors statement was actually comment on strength of states case;
while prosecutors are cautioned from attempting to instruct jury on law,
trial court gave correct jury instructions regarding consideration of lesser
included offenses, and it is presumed that jurors follow instructions of trial
court; defendants convictions for rape and attempted rape do not violate
due process when, although intervals between two acts were not
particularly lengthy, they were significantly more than mere seconds and
of enough duration to be considered separate acts, and all of acts involved
different body parts, different orifices, and required repositioning of
defendant and victim; defendants convictions for two counts of rape and
one count of attempted rape did not violate double jeopardy when each
count involved different type of sexual penetration. State v. Batts, 3/27/17,
Nashville, Ogle, 21 pages.
http://www.tncourts.gov/sites/default/files/batts_tyrone_opn.pdf

CRIMINAL LAW: Three sets of offenses, occurring within one-week time

period, in same geographic area, and all involving same cooperating
individual, same defendant, and his same companion, were part of common
scheme or plan to sell and deliver heroin; there is no authority standing for
proposition that, under Drug-Free School Zone Act, real property
comprising elementary school applies only to portions inside gate and not to
property as whole. State v. Click, 3/30/17, Knoxville, Thomas, 35 pages.
http://www.tncourts.gov/sites/default/files/majority_opinion_0.pdf
CRIMINAL LAW: In case in which defendant was convicted of possession
with intent to deliver .5 gram or more of cocaine, trial judge did not err in
failing to instruct jury on lesser included offense of simple possession when
trial court correctly determined that statute of limitation had run on
misdemeanor lesser included offense of simple possession prosecution
commenced when grand jury indicted defendant on 7/7/14, which was more
than 12 months after defendant committed present offense. State v. Gossett,
3/28/17, Jackson, Holloway, 49 pages.
http://www.tncourts.gov/sites/default/files/gossett_marchello_karlandoopn.pdf

CRIMINAL PROCEDURE: In case in which three defendants Janet

(probationer), Winsett (parolee), and Justin were indicted on various drug
and firearm offenses following warrantless parolee search of their home,
trial judge properly granted defendants motions to suppress evidence seized
from residence when tip which initiated parolee search came from
unidentified informant whose reliability and basis of knowledge was not
established, and although evidence in burn pile, security cameras, and
unidentified noise coming from inside house may have created exigent
circumstances for officers to cause forced entry into home, any potential
exigent circumstances that prompted officers to break into home no longer
existed once officers realized no one was home destroying evidence and that
dog was making suspicious noise; Janets probation agreement did not
provide sweeping consent to justify warrantless search of home when
officers did not have adequate reasonable suspicion, or any suspicion, that
Janet was engaged in any criminal activity at time of search; fact that Justins
bedroom door was open was not, standing alone, sufficient to justify search
and establish that Winsett or Janet possessed common authority over Justins
private bedroom. State v. Stanfield, 3/31/17, Jackson, McMullen, 11 pages.
http://www.tncourts.gov/sites/default/files/stanfield-winsett-stanfieldopn.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee reported injuring her

neck while at work on 2/27/16, although employee presented unrefuted
evidence of incident identifiable by time and place of occurrence, employee
failed to present medical proof that her work was primary cause of her injury
and/or primary cause for need for treatment; Dr. Ledbetters opinion is
entitled to particular consideration because doctor whom employee initially
selected from panel referred employee to him, and Ledbetters opinion that
employees reported work incident did not contribute more than 50% in
causing her injury is thus presumed correct; opinion of Dr. Shibayama, from
whom employee sought treatment on her own, that work condition was 51%
or greater cause of employees symptoms appears to have been based, at least
in part, on employees statement that she never had problems with her neck
or left arm prior to this work-related incident and his belief that her pre-
exiting condition was asymptomatic before work incident; Shibayama, if
presented with more accurate history of employees cervical problems and
treatment, might still reach same conclusion, but until then, foundation of his
causation opinion is too uncertain to rebut Ledbetters conclusion. Henderson
v. Staff Management/SMX, 1/13/17, Murfreesboro, Tipps, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1688&context=utk_workerscomp

WORKERS COMPENSATION: When employee testified that on

11/14/14, when he attempted to scoop bits small pieces of cinnamon or
dried fruit from box, he felt sudden and intense pain in his right shoulder
and that, while he suffered from aches and pains in his shoulder before, he
had never experienced this type of pain and had never missed work or
sought treatment for right shoulder pain, employee did not rebut opinion of
panel physician that shoulder pain was primarily caused by employees
underlying, pre-existing arthritis, which was not work-related condition.
Green v. Kellogg Cos., 1/19/17, Memphis, Durham, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1695&context=utk_workerscomp

WORKERS COMPENSATION: Trial court properly granted employer

summary judgment when employer relied upon undisputed facts, e.g., that
employee, claiming to have suffered hernia, did not feel pain or notice
appearance of bulge until several days after alleged date of injury, and
employee neither produced any specific facts to establish statutory
requirements for compensable hernia nor any specific facts to demonstrate
his hernia injury arose primarily out of and in course and scope of his
employment at employer. Li v. HTI Technology & Industries LLC, 1/20/17,
Memphis, Phillips, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1709&context=utk_workerscomp

ATTORNEY GENERAL OPINION

GOVERNMENT: Blanket random drug testing policy for all county

employees and elected officials would violate Fourth Amendment and Tenn.
Const. Art I, Sec. 7. Attorney General Opinion 17-23, 3/31/17, 6 pages.
http://www.tn.gov/assets/entities/attorneygeneral/opinions/op17-023.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