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TAM-BYTES

April 24, 2017


Vol. 20, No. 17

TAM Webinars

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.
Injury Damages in Tennessee: Whats the Extentand How to
Prove it, 60-minute webinar presented by Stephen R. Leffler, with
The Law Office of Stephen R. Leffler in Memphis, on Thursday, June
22, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-062217
or call us at (800) 727-5257.

Police Liability Defense Update: Section 1983, Excessive/Deadly


Force, and More, 60-minute webinar presented by Mark McGrady,
with Farrar & Bates in Nashville, on Tuesday, June 27, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/police-liability-062717
or call us at (800) 727-5257.

Zoning Appeals Navigation in Tennessee: Best Procedures and


Strategies for Attorneys, 60-minute webinar presented by Jason
Holleman, with West Nashville Law Group (WNLG) in Nashville, on
Thursday, June 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/zoning-062917
or call us at (800) 727-5257.

Preparing Title Opinions and Tackling Title Insurance Issues in


Tennessee, 60-minute webinar presented by Marcy S. Shelton, with
Reno & Cavanaugh in Nashville, on Tuesday, July 11, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/title-071117
or call us at (800) 727-5257.

On-Site Event
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*
WHEN:
THURSDAY & FRIDAY, SEPTEMBER 21-22
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL
SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties); Chancellor
Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge Walter Kurtz,
former Davidson County Circuit judge/former Tennessee senior judge; Laura Baker, Law
Offices of John Day, Brentwood; Brandon Bass, Law Offices of John Day, Brentwood; J.
Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett, Batson Nolan, Clarksville;
James Exum, Leitner, Williams, Dooley & Napolitan, Chattanooga; Steve Gillman, Pryor,
Priest, Harber, Floyd & Coffey, Knoxville; Michael H. Johnson, Howard, Tate, Sowell,
Wilson, Leathers, & Johnson, Nashville; Mary Ellen Morris, Kinnard, Clayton & Beveridge,
Nashville; Bryan Moseley, Moseley & Moseley, Murfreesboro; William J. Rieder, Spears,
Moore, Rebman & Williams, Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court, in case of first impression, holds joint tenancy with


express right of survivorship may be severed by unilateral action of
one of joint tenants;
Court of Appeals affirms summary judgment in favor of county in
wrongful death action on behalf of decedent who committed suicide
several hours after being released from jail;
Court of Appeals considers unjust enrichment claim of stepson who was
allowed to live on property for improvements to property and payments
of mortgage, property taxes, utilities, and insurance on property; and
In first degree murder case, Court of Criminal Appeals rules trial judge
improperly commented on evidence at trial when acquaintance of defendant
testified that private investigator had told her to keep moving so [she]
didnt have to show up to court today, but finds that error was harmless.
SUPREME COURT

PROPERTY: Following common law doctrine of severance, joint tenancy


with express right of survivorship may be severed by unilateral action of one of
joint tenants; doing so converts estate into tenancy in common and destroys
survivorship interest of original joint tenants; when grantor executed deed
conveying property to herself and to her son in joint tenancy with right of
survivorship, grantors second deed, conveying her interest in property to
grandson, severed joint tenancy and destroyed sons right of survivorship, so
son and grandson own property in equal parts as tenants in common. Bryant v.
Bryant, 4/19/17, Nashville, Kirby, dissent by Lee, 30 pages.
http://www.tncourts.gov/sites/default/files/bryantdarryl.opn__0.pdf
http://www.tncourts.gov/sites/default/files/bryantd.dis_.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee alleged that he broke


his left foot when he slipped on flight of stairs, and employee had type 2
diabetes and had previously been treated for diabetes-related problems with
both of his feet, Court of Workers Compensation Claims denied employers
motion for summary judgment, appeals board reversed, and employee
appealed to Supreme Court, which referred appeal to appeals panel,
employee failed to produce sufficient evidence to support his claim;
although employee filed medical records documenting treatment he received
for his left foot, he submitted no medical evidence showing that it was more
likely than not that his employment contributed more than 50% to his injury,
treating physician stated only that employees 8/1/14 workplace accident
was at least part of cause of his foot problems, and this statement does not
establish by preponderance of evidence that employees employment
contributed more than 50% in causing injury. Payne v. D & D Electric,
4/18/17, Knoxville, Lee, 7 pages.
http://www.tncourts.gov/sites/default/files/payne_-_filed.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee reported experiencing


pain and symptoms in his neck and right arm after lifting car seats on his
second day of work, nurse practitioner at walk-in clinic diagnosed radicular
right arm pain and right arm weakness and referred employee to Dr.
Schwarz, neurosurgeon, employee was seen by nurse at Schwarzs office,
nurse noted employees history of three prior neck surgeries and lumbar
surgery, nurse scheduled return appointment with Schwarz, employer denied
claim before employee returned to Schwarzs office, and trial court issued
order requiring employer to authorize medical treatment with Schwarz until
the doctor has an opportunity to address causation, trial court did not err in
denying temporary disability benefits at this time given doctors equivocal
statements concerning cause of employees condition; to extent trial courts
order can be interpreted to require employer to authorize and secure
causation opinion from Schwarz as part of authorized medical treatment,
order is modified to make clear that employer must authorize such treatment
as is reasonable, necessary, and casually related to work accident in
accordance with TCA 50-6-204(a)(1)(A). Edwards v. Job Shoppe U.S.A.,
4/20/17, Conner, 16 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1784&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1739&context=utk_workerscomp

COURT OF APPEALS

TORTS: When decedent committed suicide several hours after being


released from jail and plaintiff filed wrongful death action alleging that
decedents death was caused by countys negligence in releasing him
from custody in intoxicated state without mental health evaluation and
without notifying his family of suicidal threats that he made while
incarcerated, trial court properly granted county summary judgment;
plaintiffs evidence was not sufficient to establish that county breached
its duty of care to decedent or that its conduct was proximate cause of
his death; decedents suicidal threats triggered heightened duty to protect
him from self-inflicted harm, but heightened duty expired during
decedents conversation with correctional officer when decedent, who
appeared fine to officer, disavowed previous suicide threats; county only
had duty to exercise ordinary and reasonable care for decedents
protection for remainder of his time in custody and in releasing him.
Haynes v. Wayne County, 4/19/17, Nashville, Goldin, 18 pages.
http://www.tncourts.gov/sites/default/files/haynes.sharyn.opn_.pdf

PROPERTY: In case in which stepmother filed detainer warrant against her


stepson and was awarded possession of real property in general sessions
court, stepson appealed to circuit court, and circuit court awarded property to
stepmother, but awarded stepson $37,000 for improvements to property,
because stepson failed to prove correct measure of damages at trial, trial
courts award of $37,000 to stepson is reversed; trial court properly
concluded that no resulting trust with regard to property was proven when
stepson in no way contributed to purchase of subject property at time it was
purchased, and nothing in record shows that stepson incurred absolute
obligation to pay for property at time of its purchase; while unjust
enrichment and quantum meruit may be synonymous in that they both
involve class of implied obligations where, on the basis of justice and
equity, the law will impose a contractual relationship between parties,
regardless of their assent thereto, elements of each claim remain distinct;
Tennessee Supreme Court has not held that required elements of quantum
meruit claim must also be proven to show unjust enrichment; it was not
unjust for stepmother to retain benefit of stepsons payments of mortgage,
property taxes, utilities, and insurance on property when stepson agreed to
pay these expenses while he lived on property, and by allowing stepson to
live on property, which stepmother, as co-owner of property, was under no
obligation to do, it appears that stepmother provided some consideration in
exchange. Patterson v. Patterson, 4/20/17, Nashville, Stafford, 18 pages.
http://www.tncourts.gov/sites/default/files/patterson.peggy_.opn_.pdf

FAMILY LAW: Evidence did not support termination of mothers parental


rights to her child on ground of persistence of conditions when no final prior
order on abuse, dependency, or neglect was entered prior to termination
hearing; evidence supported termination of mothers parental rights on
ground of substantial non-compliance with requirements of permanency plan
when, while mother maintained legal source of income, she remained
uncooperative in most significant responsibility of permanency plan, i.e.,
addressing her mental health issues; with regard to terminating parents
parental rights on ground of mental incompetence, standard for this issue has
been described as inquiring as to whether by clear and convincing evidence
that the parent of the child is incompetent to adequately provide care and
supervision because the parents mental condition is so impaired and likely
to remain so that it is unlikely that the parent will be able to assume care and
responsibility for the child in the future expert testimony on effect of
parents mental illness on his or her ability to parent child is not required. In
re Lorenda B., 4/19/17, Nashville, Swiney, 17 pages.
http://www.tncourts.gov/sites/default/files/inrelorendab.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In first degree murder case, trial judge improperly


commented on evidence at trial when, Lotz, acquaintance of defendant,
testified that private investigator (Hardy) had told her to keep moving so
[she] didnt have to show up to court today, and trial court commented that
given Hardys comments, he will not ever get anything in this court if that
proves to be the case, and that, if it became clear to the Court that that was
the case, that that person would be barred from ever dealing with this court;
in making statements, trial judge improperly conveyed to jury his feelings
toward Lotzs testimony that investigator hired by defense suggested that
she move in order to avoid service of subpoena to testify at trial such
comments could be viewed as imputing investigators alleged improper
behavior to defense counsel; trial courts error was harmless when two
witnesses testified that defendant killed victim by hitting him in head and
face with ball-pein hammer, victims blood was found on front passenger
side of truck where defendant had been sitting, and defendant made
statements to two individuals admitting his involvement in victims death;
trial court properly found that defendants request to represent himself was
untimely when trial was in its fourth day, and 26 witnesses had testified.
State v. Jenkins, 4/21/17, Nashville, Williams, 38 pages.
http://www.tncourts.gov/sites/default/files/jenkinsdavid.pdf

CRIMINAL LAW: In case in which defendant was convicted of two counts


of aggravated child abuse and one count of knowing aggravated assault as
lesser included offense of aggravated child neglect, because knowing
aggravated assault is not lesser included offense of aggravated child neglect
as charged in case, defendants conviction for that offense is modified to one
of misdemeanor reckless endangerment reckless endangerment conviction
is merged into aggravated child abuse convictions; although trial court erred
by allowing jury to hear that defendant had been in trouble previously,
error was harmless when jury did not hear that defendant had been arrested,
charged, or convicted of any crime, only trouble revealed to jury was
defendants statements during his second interview with police that he broke
into his girlfriends apartment to leave her flowers and lunch, and trial court
instructed jury during testimony and during final charge that it could not
consider defendants criminal history as evidence of his propensity to
commit crimes for which he was on trial. State v. Hodges, 4/19/17,
Nashville, Ogle, 17 pages.
http://www.tncourts.gov/sites/default/files/hodgesmichaeldeanremand.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


two counts of aggravated robbery and one count of carjacking, trial judge
did not err by allowing state to give hypothetical example to explain
criminal responsibility during voir dire when this court has approved of use
of hypothetical scenarios similar to one used in this case, concluding that it
did not ask for a commitment from the prospective jurors. State v. Leach,
4/19/17, Nashville, Ogle, 7 pages.
http://www.tncourts.gov/sites/default/files/leach_tazarius_opn.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