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TAM-BYTES

May 1, 2017
Vol. 20, No. 18

TAM Webinars

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.
Gun Dealer and Owner Liability in Tennessee: Client Counsel Tips
and Techniques, 60-minute webinar presented by James E. Wagner
with Frantz McConnell & Seymour in Knoxville, on Tuesday, July 18,
at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/guns-071817
or call us at (800) 727-5257.

Foreclosure Process and Case Management Strategies for


Tennessee Attorneys, 60-minute webinar presented by Mark
McGrady with Farrar & Bates in Nashville, on Thursday, July 20, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/foreclosure-072017
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, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-072717
or call us at (800) 727-5257.

On-Site Events
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.

Family Law Conference for Tennessee Practitioners


WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn


Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Moses, MTR Family
Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville; Judge
Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville attorney;
Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black Morgan &
Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District (Greeene,
Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear, Newman &
Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County; Kevin
Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel, Board of
Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital


property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

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

IN THIS WEEKS TAM-Bytes

Court of Appeals, in case in which trial court granted remittitur of


jurys verdict from $125,000 to $47,800 61.8% of verdict holds
remittitur did not totally destroy jury verdict;
Court of Appeals says Interstate Compact on Placement of Children
did not apply when, after mother abandoned child and child was
declared dependent and neglected, custody was placed with out-of-
state father who was not previously aware of childs existence;
Court of Criminal Appeals reverses convictions for attempted
voluntary manslaughter and two counts of aggravated assault when
trial judge committed reversible error by permitting state to introduce
evidence of defendants previous aggravated assault conviction
because its probative value was outweighed by unfair prejudicial
effect on substantive issues;
Court of Criminal Appeals, in drug case, says trial court did not abuse
discretion by admitting photographs of text messages between
detective and 4949 number when photos were properly
authenticated by detective, participant in controlled drug buy; and
General Assembly enacts IMPROVE Act raising gas tax and phasing
out Hall Income Tax.

COURT OF APPEALS

TORTS: In case in which plaintiff, driver of tractor-trailer, collided with


overturned tractor-trailer owned by defendant on interstate, trial court erred
in granting defendant summary judgment because reasonable persons could
differ as to whether driver of defendants tractor-trailer acted reasonably
under circumstances he described in his affidavit that another tractor-
trailer forced him off road and that his tractor-trailer rolled onto its side
when he braked and traveled back onto roadway; defendant did not
affirmatively negate essential element of plaintiffs claim and plaintiffs
burden to produce evidence establishing existence of genuine issues for trial
was not triggered. Helyukh v. Buddy Head Livestock & Trucking Inc.,
4/24/17, Jackson, McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/helyukhvopn.pdf

DAMAGES: In suit against spa for damages resulting from facial plaintiff
received that burned her face, trial court did not err in suggesting remittitur
of jury verdict from $125,000 to $47,800; 61.8% certainly is large reduction
in jurys verdict, but, in absence of any compelling argument from plaintiff
and, given wide range in which even large remittiturs historically have been
affirmed, jurys verdict was not totally destroyed by trial courts suggested
remittitur. West v. Epiphany Salon & Day Spa LLC, 4/25/17, Knoxville,
Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/west_v._epiphany_salon.pdf

INSURANCE: In suit by policyholder to recover under personal fire and


extended coverage policy for damage caused when burglars broke into
his home under renovation and removed copper wiring, causing
considerable damage, and policy coverage for vandalism did not apply to
loss by theft, burglary, or larceny but it applied to damage to covered
building which is caused by burglars, while cost of copper wire is not
recoverable, damage to building caused by burglars is covered, and not
only damage that insurance company concluded was caused by
vandalism. Dillon v. Tennessee Farmers Mutual Insurance Co.,
4/27/17, Knoxville, Dinkins, 5 pages.
http://www.tncourts.gov/sites/default/files/dillon_opinion.pdf
PROPERTY: When owner of indebted company signed promissory note
for $370,615 payable to supplier and paid small portion of note before
selling business to his son for $12,000, supplier filed suit to obtain judgment
for balance owed on promissory note after transfer of business to son,
supplier obtained judgment against former owner, but not against company,
for amount owed on note, and supplier then filed suit against son in effort to
have sale set aside on basis that it was fraudulent conveyance, trial court did
not err in finding that supplier failed to prove that former owner transferred
company to son with actual intent to defraud supplier pursuant to TCA 66-3-
305(a)(1); trial court properly ruled that supplier failed to establish claim for
constructive fraud. Delta Gypsum LLC v. Felgemacher, 4/28/17, Knoxville,
Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/gypsum_v_felgemacher_0.pdf

FAMILY LAW: In case in which parties were married for 10 years, trial
court did not abuse discretion in awarding wife $2,500 per month as
rehabilitative alimony for three years when wife quit her job to live with
husband in Europe, wife remained unemployed throughout marriage, with
exception of one month of employment as medical transcriptionist, wife
ended this employment when husband requested that wife assist him with
two businesses, for which she took no salary, husband has college degree
and is trained helicopter pilot, husband has maintained employment
throughout marriage, and since filing for divorce, wife, who has undergone
two surgeries, has been unable to find long-term employment despite
having applied for various jobs; evidence did not preponderate against trial
courts award of $20,000 in attorney fees to wife in light of husbands
superior economic position relative to wife and husbands
misrepresentation of his income at hearing. Henson v. Henson, 4/24/17,
Nashville, Armstrong, 12 pages.
http://www.tncourts.gov/sites/default/files/henson.trina_.opn_.pdf

FAMILY LAW: In case in which mother abandoned her child, juvenile


court found child to be dependent and neglected and placed child in state
custody, state sought provisional placement of child with her father, who
was unaware of childs existence until dependency and neglect proceedings,
because father lived in another state, state made request under Interstate
Compact on Placement of Children (ICPC) to fathers state of residence for
home evaluation, response to request recommended against placement,
juvenile court then held hearing and ordered child to remain in state custody,
father appealed, and circuit court awarded custody of child to father and
relieved state of any further responsibility for child, because ICPC was not
applicable granting custody to father would come within limited exception
found in ICPC Regulation No. 3 for placements with parents from whom
child was not removed circuit courts award of custody to father is
affirmed. In re Courtney R., 4/28/17, Nashville, McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/inrecourtneyr.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts


designation of father as childs primary residential parent based on finding
that mother did not have mental or emotional fitness necessary to provide
child with stable environment mother suffered from bipolar disorder with
psychosis, she required treatment to control symptoms such as mood swings,
insomnia, paranoia, anxiety, and fearfulness, she had little insight into her
condition, and trial court found that mother was in denial about her diagnosis,
she exhibited difficulty coping with stress, she lashes out at others, and she
had unstable relationship with her core support group; trial court did not
abuse discretion by awarding mother unsupervised visitation with child when
mother did not physically or emotionally abuse child, she had never
physically endangered child, she consistently showed affection and concern
for child, and her outbursts were directed at father and her own parents, not
child. Nunnally v. Nunnally, 4/28/17, Knoxville, Clement, 13 pages.
http://www.tncourts.gov/sites/default/files/nunnally_v_nunnally.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of attempted


voluntary manslaughter and two counts of aggravated assault in connection
with offenses committed against his stepfather, trial judge committed
reversible error by permitting state to introduce evidence of defendants
previous aggravated assault conviction when although prior conviction
might have had some probative value relative to defendants credibility and
jurys ability to determine whether he acted in self-defense, probative value
was outweighed by unfair prejudicial effect on substantive issues by causing
jury to conclude that defendant was aggressor in present altercation because
he had been previously convicted of aggravated assault; although
defendants testimony generally referenced other incidents of domestic
altercations with victim, defendant did not testify that victim was generally
violent, did not provide opinion regarding victims propensity for violence,
and did not attempt to present any evidence related to victims alleged prior
bad acts; because defendant did not raise issue of his character for
peacefulness by asserting victim was initial aggressor, admission of
defendants previous conviction pursuant to TRE 404 was improper; trial
courts judgments are reversed, and case is remanded for new trial. State v.
Baker, 4/28/17, Nashville, Montgomery, 17 pages.
http://www.tncourts.gov/sites/default/files/gary_baker.pdf

EVIDENCE: In case in which defendant was convicted of four


separate felony offenses for his participation in controlled drug buy of heroin
and cocaine within 1,000 feet of school, trial court did not abuse discretion
by admitting into evidence photographs of text messages between detective
and 4949 number when photos were properly authenticated by detective,
participant in controlled drug buy, who testified that drug deal materialized
as planned in text messages with 4949 number, at trial, detective identified
cell phone seen in photos as cell phone of the Kingsport Police
Department he used to text 4949 number, he further stated that photos
accurately depicted text messages between him and 4949 number, and
defendant did not provide any evidence to dispute detectives testimony.
State v. Lane, 4/24/17, Knoxville, Dyer, 8 pages.
http://www.tncourts.gov/sites/default/files/justin_lane_opinion.pdf

EVIDENCE: In DUI case, trial court did not err by permitting arresting
officer to testify about defendants fitness to drive motor vehicle and his
performance on field sobriety tests when jury would have understood
officers testimony to mean that defendants physical behavior gave him
impression that defendant was not sober and would have understood that
officers opinion that defendant was unfit to operate motor vehicle was
based partly on his observations of defendants lack of coordination during
field sobriety tests; officer may offer lay opinion testimony as to drivers
performance on field sobriety tests, fitness to operate motor vehicle, and
degree of intoxication; prosecutors request to jury during closing argument
to put themselves in place of hypothetical victim confronted with drunk
driver approaching in another vehicle was improper, but any error was
harmless in light of fact that prosecutor did not complete his hypothetical
due to defense counsels objection and fact that evidence of defendants guilt
was very strong. State v. Gwinn, 4/26/17, Knoxville, Easter, 10 pages.
http://www.tncourts.gov/sites/default/files/gwinn_opinion.pdf

EVIDENCE: In case in which defendant was convicted of reckless


aggravated assault, trial judge erred in admitting photographs of surgical
procedures performed on victim when photos were gruesome and had
minimal probative value exact method used to cause injuries was not at
issue, so photos were not necessary to prove attack angles, position of
victims body, etc.; error was harmless given that impact of error cannot
reasonably be taken to have negatively impacted jurys verdict against
defendant in light of conflicts in testimony and fact that jury found
defendant guilty of lesser included offense on one charge and acquitted
defendant of other. State v. Thompson, 4/27/17, Knoxville, Easter, dissent
by Thomas, 17 pages.
http://www.tncourts.gov/sites/default/files/ricky_thompson_opinion.pdf

CRIMINAL PROCEDURE: Post-conviction court properly ruled that trial


counsel was deficient in allowing petitioner to enter guilty plea to offense of
employing firearm during commission of dangerous felony when petitioner
had prior felony conviction but did not have qualifying prior dangerous
felony; because prior conviction under TCA 39-17-1324(f) is limited to
prior conviction for dangerous felony, aggravated robbery, which is not
dangerous felony under statute, cannot be qualifying prior felony; case is
remanded for post-conviction court to correct judgment forms to reflect
judgment and sentence for surviving conviction. Bowman v. State, 4/24/17,
Knoxville, Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/josh_bowman_opinion.pdf

PUBLIC CHAPTERS

TAXATION: IMPROVE Act raises gas tax over three years, reduces state
sales tax rate for food sold at retail, and cuts Hall Income Tax 1% each year
until tax is eliminated. 2017 PC 181, effective 4/26/17 & 7/1/17, 59 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0181.pdf

CRIMINAL LAW: Theft offense is expanded to include methods to


facilitate theft, and sentence is increased for fifth or subsequent conviction in
two-year period. 2017 PC 184, effective 7/1/17, 2 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0184.pdf

SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: In case in which plaintiff, pretrial detainee


who was sprayed with chemical agent by corrections officer (defendant)
and charged with assaulting defendant after having asked to see nurse,
filed suit under 42 USC 1983 against defendant, alleging excessive force,
deliberate indifference to serious medical needs, unlawful arrest, and
malicious prosecution, district court properly denied defendants motion
for summary judgment on ground of qualified immunity; reasonable
officer would have been on notice at time of offense that use of chemical
agent on non-threatening pretrial detainee who did not comply with
officers verbal orders and then passively resisted open-handed escort by
hesitating and stopping to turn to ask again about seeing nurse would
amount to constitutionally excessive force; district court did not err in
denying defendant qualified immunity with respect to claims of unlawful
arrest and malicious prosecution when there is disputed question of fact
whether reasonable officer in defendants position could have believed
that plaintiff made contact with officers arm intentionally, knowingly, or
recklessly. Guy v. Metropolitan Government of Nashville, 4/25/17, Guy,
dissent by Clay, 15 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0235n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee testified that upon


prodding from doctor for specific incident related to her symptoms, she
recalled suffering transient sensation akin to prick or shock in her left
wrist while moving rack of clothes in 4/16, this sensation was not
accompanied by further pain or numbness, she did not have trouble
performing her job duties at that time, employee testified that while she
noticed her left thenar muscle collapsed few weeks later, it did not cause
her any pain or numbness nor did it interfere with her ability to do her job,
she averred she did not know at time why it occurred, employee visited
doctors office several times during following months but never sought
active treatment for her left hand, she began experiencing some numbness
and intermittent episodes of pain in her hand in 7/16, it was not until she
worked nine consecutive days in late 7/16 and early 8/16, culminating in 11-
hour shift on ninth day, that pain and numbness in her left hand and wrist
became constant and disabling, and on 8/8/16, within 15 days of this
exacerbation in her symptoms, employee provided notice to her supervisor
of her suspected work-related injury, employee is likely to establish that she
provided adequate statutory notice to employer. Wiles v. Dillards, 2/1/17,
Murfreesboro, Durham, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1704&context=utk_workerscomp

WORKERS COMPENSATION: Employee is likely to prevail at hearing


on merits in proving that she sustained aggravation of her pre-existing right-
knee condition that arose primarily out of and in course and scope of her
employment with employer when although employee needed right-knee
replacement at some undetermined time in future, doctor testified that
6/11/16 injury aggravated her pre-existing osteoarthritis and accelerated
need for knee replacement surgery and when employee worked full time for
over two years prior to her injury on 5/11/16 without needing any medical
treatment for her right-knee osteoarthritis. Davis v. Life Line Screening of
America Ltd., 2/7/17, Chattanooga, Headrick, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1715&context=utk_workerscomp

REVENUE RULINGS

TAXATION: Application of Tennessee sales and use tax to software.


Department of Revenue Letter Ruling 17-01, 2/9/17, 7 pages.
http://www.tn.gov/assets/entities/revenue/attachments/17-01.pdf

TAXATION: Application of Tennessee recordation tax to faith-based home


financing transactions. Department of Revenue Letter Ruling 17-03,
3/28/17, 4 pages.
http://tn.gov/assets/entities/revenue/attachments/17-03ms.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