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TAM-BYTES

July 3, 2017
Vol. 20, No. 27

TAM Webinars

Tennessee Series LLC: Client Counsel Best Practices for Liability


Separation, 60-minute webinar presented by Michael Goode, with
Stites & Harbison in Nashville, on Wednesday, August 2, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/series-LLC-080217
or call us at (800) 727-5257.

Tennessee Probate Case Law and Legislative Update: What


Attorneys Need to Know, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, August 3,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/probate-080317
or call us at (800) 727-5257.

Parental Relocation in Tennessee: The Impact of the Aragon


Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.

2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.
Trump and Immigration: The Essential Attorney Update, 60-minute
webinar presented by Terry Olsen, with Olsen Law Firm in Chattanooga,
on Wednesday, August 23, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-082317
or call us at (800) 727-5257.

Proving Damages in Tennessee: How to Present Evidence and


Command Jury Attention, 60-minute webinar presented by John
Dunlap, Memphis attorney, on Thursday, August 24, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-082417
or call us at (800) 727-5257.

Divorce in Tennessee: Essential First Steps for Attorneys, 60-


minute webinar presented by Kevin Shepherd, with Shepherd and
Associates PC in Maryville, on Thursday, August 31, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/divorce-083117
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.

12th annual
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 Eskind 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 Eskind 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.

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Court of Appeals holds healthcare liability action was barred by


statute of limitation when suit was brought more than one year and
120 days of date of surgery during which defendant surgeons
lacerated or penetrated bowel and decedent developed peritonitis and
sepsis as result of leaking bowel and abscess;
In ruling that plaintiff had standing to bring breach of contract action,
Court of Appeals rules sole member of limited liability company
(LLC) may assign LLC property to himself;
Court of Appeals says, in finding that evidence did not support
termination of mothers parental rights to her three children on ground
of abandonment by failure to provide suitable home, that DCS
employees must use their superior insight and training to assist parents
with problems DCS has identified in permanency plan, whether
parents ask for assistance or not;
Court of Appeals vacates judgment terminating parental rights when
trial court erred in granting mothers appointed counsel leave to
withdraw on day of trial when counsel failed to establish mothers
obligations in communicating with him and failed to indicate if he had
provided mother any prior warning that he might withdraw; and
Sixth Circuit rules appearance of unfamiliar car in middle of night at
scene of home invasion during crime may provide reasonable
suspicion for police to stop that car weeks later.

COURT OF APPEALS

TORTS: When defendant doctors, on 2/20/11, performed exploratory


laparotomy, which revealed adhesions and strictures in small bowel,
surgeons lacerated or penetrated small bowel, which required them to resect
portion of bowel, surgeons used vinyl mesh to secure fascia and closed skin
over mesh because they were unable to close abdomen as result of swelling,
small bowel or some other injured site leaked contents of decedents bowel
into abdomen, causing abscess and fistulas, decedent developed peritonitis
and sepsis as result of leaking bowel and abscess and died on 4/21/11, and
decedents family members (plaintiffs) provided pre-suit notice of potential
suit against doctor and gastroenterology center on 1/24/12, filed suit on
8/13/12, voluntarily dismissed suit on 9/27/12, and again provided pre-suit
notice before filing complaint pursuant to saving statute on 9/26/13, trial
court properly granted summary judgment based on statute of limitation;
plaintiffs could not rely upon discovery rule and were required to file suit no
later than 6/20/12, within one year and 120 days of date of surgery; with
respect to fraudulent concealment, there was no evidence establishing that
plaintiffs could not have discovered injury or identity of wrongdoer despite
reasonable care and diligence or that anyone concealed material information
from them. Jones v. Behrman, 6/27/17, Jackson, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/jonesloresedouglasopn.pdf

COMMERCIAL LAW: In dispute over purchase and sale of real property,


trial court erred in failing to consider factual allegations of amended
complaint when ruling on issue of standing and concluding that plaintiff
could not assign limited liability companys (LLCs) property to himself as
sole member of LLC, and trial courts grant of summary judgment in favor
of defendant seller on basis of lack of standing is reversed; plaintiff, acting
as sole member of LLC, assigned LLCs right to receive any and all monies
and assets recovered and/or collected on LLCs behalf to himself, and such
action is expressly permitted by TCA 48-249-610(d)-(e) as part of winding-
up process; because plaintiff was assigned LLCs rights pursuant to
agreement, he stands in the shoes of LLC and can properly assert LLCs
claim for breach of agreement. Bowers v. Estate of Mounger, 6/29/17,
Knoxville, Frierson, 18 pages.
http://www.tncourts.gov/sites/default/files/bowers_v_mounger.pdf

ESTATES & TRUSTS: Decedent, who operated excavating company, died


intestate, widow argued that she is owner of all of 1,000 shares of stock that
company issued to Jim Miller and Vicky [sic] Miller JTROS shortly after
companys incorporation, decedents daughters argue that stock certificate
was invalid and that corporations assets should be part of decedents estate,
and daughters filed copy of companys bylaws, in which following language
is found: [T]he Board of Directors shall consist of one individual, to-wit, its
sole shareholder, James E. Miller, trial court erred in granting widows
motion for summary judgment; there is genuine issue of material fact as to
whether companys directors and incorporators intended that company
would be owned by decedent and widow as joint tenants with right of
survivorship. In re Estate of Miller, 6/29/17, Knoxville, Susano, 9 pages.
http://www.tncourts.gov/sites/default/files/in_re__estate_of_james_e_miller.pdf

FAMILY LAW: In case in which appellant filed petition to terminate


parental rights of unknown father of child for whom appellant had signed
voluntary acknowledgment of paternity (VAP), trial court allowed Jon F.,
who asserted that he was biological father of child, to intervene in action,
and trial court found that Jon F. was biological and legal father of child, that
appellants VAP had been rebutted, and that any and all parental rights of
appellant as legal father were terminated by operation of law, trial court
properly dismissed appellants termination petition; trial court properly
determined that VAP executed by appellant should be rescinded for mutual
mistake of fact regarding its execution pursuant to TCA 24-7-113(e)(1), and
as such, appellant maintained no parental rights with regard to child. In re
Francis P., 6/26/17, Knoxville, Frierson, 18 pages.
http://www.tncourts.gov/sites/default/files/in_re__francis_p..pdf

FAMILY LAW: Evidence did not support termination of mothers parental


rights to her three children on ground of abandonment by failure to provide
suitable home when Department of Childrens Services (DCS) failed to meet
its burden to show that it made reasonable efforts to assist mother in
obtaining suitable housing for children; while DCSs efforts need not be
Herculean, reasonable efforts must entail more than simply providing
parents with list of service providers and sending them on their way DCS
employees must use their superior insight and training to assist parents with
problems DCS has identified in permanency plan, whether parents ask for
assistance or not; because evidence was sufficient to support termination of
mothers parental rights on grounds of severe child abuse and substantial
non-compliance with requirements of permanency plan, evidence
preponderated in favor of trial courts termination of mothers parental
rights. In re Rylan G., 6/28/17, Knoxville, Armstrong, 20 pages.
http://www.tncourts.gov/sites/default/files/in_re__rylan_g._et_al..pdf

FAMILY LAW: Attorney appointed by juvenile court for indigent parent in


parental termination case must seek leave of court to withdraw; trial court
erred in granting mothers appointed counsel in parental rights termination
case leave to withdraw on day of trial when counsel based his request to
withdraw on his difficulties in communicating with mother and her failure to
appear for trial, but counsel failed to establish mothers obligations in
communicating with him, failed to provide suitable notice that he would
withdraw if mother failed to satisfy those obligations, and failed to indicate if
he had provided mother any prior warning that he might withdraw; juvenile
courts judgment is vacated to extent it terminated mothers parental rights,
and case is remanded for new trial; on remand, trial court should make new
determination concerning mothers indigency and, if necessary, appoint her
counsel. In re Jamie B., 6/30/17, Nashville, McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/inrejamieb.opn_.pdf

CIVIL PROCEDURE: In post-judgment proceedings following final


judgment in favor of city that appellants pay $45,175 for unpaid
maintenance fees on their commercial real property, trial court did not abuse
discretion in overruling motion to pay judgment by installments under
slow-pay statute, TCA 26-2-216, when appellants were less than
forthcoming in their affidavit stating their inability to pay debt, there were
clearly other assets available, as appellants own additional real estate, and
appellants failure to disclose their ownership of properties in Ohio and
Florida, much less to account for how they maintain such properties, would
justify trial courts decision to deny slow pay motion. City of Gatlinburg
v. Greenstein, 6/29/17, Knoxville, McClarty, 5 pages.
http://www.tncourts.gov/sites/default/files/city_of_gatlinburg_v._maury_r._greenstein_et_al..pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: Given fact that physicians have affirmative duty to report


child abuse, physicians testimony regarding diagnosis of child abuse was
not prejudicial, particularly in case where ultimate issue and charge is
offense such as aggravated rape of child and not child abuse; while
physician acknowledged that he included words child abuse in his report,
he did not offer opinion as whether defendant raped or sexually abused
victim, he testified that his diagnosis of victims injuries was non-
accidental trauma, and he stated that he would have preferred to categorize
victims injuries as rectal injuries in medical records, but that he was
limited by electronic record systems pre-determined list of diagnoses. State
v. Blackwell, 6/26/17, Nashville, McMullen, 24 pages.
http://www.tncourts.gov/sites/default/files/blackwell_anthonyopn.pdf

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


contempt for failing to appear at show cause hearing, trial court violated
defendants due process rights when it found her in contempt without
providing notice or opportunity to prepare for hearing; no notice was
provided to defendant regarding her contempt charge, rather, trial court
immediately issued attachment for defendants arrest upon her failure to
appear at show cause hearing; defendants conviction is reversed and
vacated. State v. Houston, 6/26/17, Nashville, McMullen, 5 pages.
http://www.tncourts.gov/sites/default/files/ebony_houston_opn.pdf

CRIMINAL PROCEDURE: In case in which defendants were indicted on


charges of theft over $60,000 based on their fraudulent medical billing
practices at childrens therapy facility they owned and operated, trial court
erred in finding that defendants rights to due process and speedy trial had
been violated in light of states delay in indicting them when defendants failed
to show that state engineered delay in order to gain tactical advantage proof
showed that matter was being reviewed by U.S. Attorneys Office until
applicable federal statute of limitation had expired; trial courts order is
reversed, and indictment must be reinstated as to both defendants; although
each theft was from same victim, i.e., State of Tennessee, there was not
separate statute of limitation as to each act, but, rather, statute as to all
offenses ran from last act in series, and hence, state may prosecute all offenses
alleged in indictment. State v. Graham, 6/28/17, Jackson, Glenn, 8 pages.
http://www.tncourts.gov/sites/default/files/graham_arthur_and_michelleopn.pdf

CRIMINAL LAW: Aggravated sexual battery is lesser included offense of


rape of child. State v. Alvarado, 6/27/17, Nashville, Thomas, 33 pages.
http://www.tncourts.gov/sites/default/files/alvarado_joseopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


felony vandalism, assault, disorderly conduct, and public intoxication after
incident involving his neighbor, trial court did not err in permitting state to
use defendants prior convictions, including grand larceny, possession of
marijuana, and malicious shooting, to impeach him when defendant opened
door to impeachment by his own testimony; by testifying that he was not
violent person who followed the law, defendant placed his prior criminal
record at issue and increased probative value of his felony convictions, and
as such, state was entitled to impeach defendants testimony with all of his
prior convictions despite fact that they were more than 10 years old at time
of trial. State v. Burton, 6/27/17, Nashville, Easter, 8 pages.
http://www.tncourts.gov/sites/default/files/burton_rockyopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: Appearance of unfamiliar car in middle of


night at scene of home invasion during crime may provide reasonable
suspicion to stop that car weeks later; because there was reasonable
inference that criminals had fled in vehicle, there were indications that this
particular vehicle may have had evidence of crime, and when combined with
other factors time of night, fact that vehicle was not known in
neighborhood and was gone by next day, and that vehicle was likely used in
robbery police officers stop of vehicle in question was constitutional.
United States v. Jackson, 6/26/17, Boggs, 11 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0366n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When 69-year-old truck center manager


tore his ACL as result of twisting accident at work on 2/9/15, fact that no
physician treated employees ACL condition during substantial course of
medical treatment is significant since, by statutory definition, in order for
condition to qualify as injury, there must be associated need for medical
treatment; further supporting finding that employee did not injure his ACL
and/or MCL as result of 2/9/15 accident is doctors explanation that
whatever condition of employees ACL/MCL, it resulted from pre-existing
and severe arthritis, not alleged work injury; employee did not prove that his
septic arthritis arose from 2/9/15 work accident. Burleson v. Doyles Tire
Service Inc., 4/11/17, Kingsport, Addington, 18 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1778&context=utk_workerscomp
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