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August 7, 2017
Vol. 20, No. 32

TAM Webinars

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.

Helping Clients Market and Collect Via Telephone: TCPA Update

for Attorneys, 60-minute webinar presented by David Esquivel &
Elaina Al-Nimri, with Bass, Berry & Sims in Nashville, on Thursday,
September 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/tcpa-090717
or call us at (800) 727-5257.

Cybersecurity Cases and Trends: Helping Clients Comply and

Control Risks, 60-minute webinar presented by Justin Joy, with
Lewis, Thomason, King, Krieg & Waldrop in Memphis, on Wednesday,
September 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/cyber-092017
or call us at (800) 727-5257.

Client Cybersecurity Update: Top 10 Things to Do in the Event of a

Data Breach, 60-minute webinar presented by Paige Boshell & Mike
Pennington, with Bradley Arant Boult Cummings in Birmingham, AL, and
Alex Purvis, with Bradley Arant Boult Cummings in Jackson, MS, on
Wednesday, September 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/data-breach-092717
or call us at (800) 727-5257.
On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
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
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; 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

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

David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District;
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; 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
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.

11th annual
Tennessee Workers Comp Conference
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge

Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
LAW ATTORNEYS: Mary Dee Allen, Wimberly Lawson Wright Daves & Jones PLLC;
Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Leslie Bishop, Lewis,
Thomason, King, Krieg, & Waldrop, P.C.; Kitty Boyte, Constangy, Brooks, Smith &
Prophete, LLP; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims

and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)
*Take $50 off of full program until October 13 (early bird discount)*

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


Supreme Court increases attorneys punishment for misconduct to one

year, from public censure, based on attorneys prior history of
discipline and his conduct with regard to clients case, i.e., attorney
failed to file notice of appeal on behalf of client for 3.5 years and
failed to adequately communicate with client in interim;
Court of Appeals affirms dismissal of healthcare liability action when
medical authorization form provided with pre-suit notice did not
substantially comply with HIPAA regulations, and hence, statute of
limitation was not extended 120 days;
Court of Appeals modifies alimony award from transitional alimony
to alimony in futuro but leaves duration of award, i.e., 12 years, as
originally set by trial court, finding that award of alimony for 12 years
constitutes long-term support;
Court of Appeals rules county board of education erred in forcing
plaintiff to make request under Tennessee Public Records Act by mail
or in person; and
Court of Criminal Appeals says TCA 55-10-408(e) does not give
defendant right to test sample of blood collected and tested by
state in DUI case.


PROFESSION OF LAW: In case in which complaint of misconduct was

filed against attorney by client in first degree murder case, alleging that
attorney failed to file notice of appeal on behalf of client for 3.5 years and
failed to adequately communicate with client in interim, sanction imposed
by Board of Professional Responsibility, i.e., public censure, was not severe
enough in light of attorney's prior disciplinary history and his conduct with
regard to client's case; punishment imposed is modified to one-year
suspension from practice of law, with six months to be served on active
suspension and six months to be served on probation with practice monitor,
and six additional hours of CLE on subjects related to management of law
practice and/or client communication. In re Walwyn, 8/4/17, Nashville,
Page, unanimous, 18 pages.

WORKERS COMPENSATION: In case in which employee suffered kneecap

dislocation, while doctors testimony that employees work activities on 7/30/14
could have contributed to injury or were possible cause of injury, in
theory, may have been sufficient to establish causation under prior law, it is
insufficient under statutes applicable to this appeal, which state that injury arises
out of employment only if it has been shown by a preponderance of the
evidence that the employment contributed more than fifty percent (50%) in
causing the injury, considering all causes; in face of proof showing that
employee had prior knee problems, had undergone prior knee surgeries, and had
underlying condition that pre-disposed him to patellar dislocation, doctors
testimony falls short of establishing, by preponderance of evidence, that
employment contributed more than 50% in causing patellar dislocation. Willis v.
All Staff, 8/3/17, Nashville, Summers, 8 pages.

WORKERS COMPENSATION: Evidence did not preponderate against

trial courts award of benefits when although none of employees treating
physicians found there to have been anatomical change following her 1/8/10
fall, this evidence was, in at least some instances, due to absence of pre- and
post-fall diagnostic studies for comparison and upon which to base such
determination, none of physicians disputed that employee had been
asymptomatic prior to fall and that she had become symptomatic only after
fall, lay testimony made clear that employee indeed was completely
asymptomatic prior to 1/8/10 fall, she was free of pain and was not disabled
in any manner from performing requirements of her work or her daily living
activities, and following her fall, employee was significantly, though not
totally, disabled from work and daily living activities as result of her pain,
and medical testimony did not establish that employee would have required
surgery on her right knee at some definite future point in time absent her fall.
Jenny Craig Operations Inc. v. Reel, 8/4/17, Nashville, Bivins, 13 pages.


TORTS: When plaintiffs filed healthcare liability action against two

medical providers, dermatology practice and certified physicians
assistant employed by practice, defendants filed separate motions to
dismiss for failure to comply with provisions of TCA 29-26-121,
defendants asserted that plaintiffs HIPAA authorization form did not list
which individual(s) or organization(s) were authorized to make
disclosures of specified medical records, defendants asserted that because
plaintiffs failed to provide sufficient pre-suit notice, they were precluded
from relying on 120-day extension to statute of limitation, trial court did
not err in dismissing plaintiffs healthcare liability action against
dermatology practice without prejudice based on plaintiffs failure to
provide medical authorization with their pre-suit notice that was
substantially compliant with HIPAA regulations; dermatology practice
was prejudiced by inadequacy of plaintiffs pre-suit medical
authorization because dermatology practice would not be allowed to use
plaintiffs medical records to mount defense. Lawson v. Knoxville
Dermatology Group P.C., 8/1/17, Knoxville, Frierson, 13 pages.

TORTS: When deputy pulled over car for speeding, drivers wife and son, after
hearing of traffic stop over police scanner, drove van to scene and parked behind
deputys car, wife exited van, questioned deputy about why husband had been
stopped, and attempted to go check on husband, and when wife refused deputys
instruction to return to van and continued to interfere, deputy arrested her and
placed her in handcuffs, and driver and wife (plaintiffs) filed suit against county,
sheriff, and deputy, trial court erred in granting defendants summary judgment
on assault and battery claim as there was question of fact regarding whether
deputy used excessive force after handcuffing wife; trial court erred in granting
summary judgment to defendants on assault and battery claim on basis that there
was no evidence of injury when wife testified that, when deputy pulled upon
middle of handcuffs, she felt pain and screamed; trial court properly granted
defendants summary judgment on claim of intentional infliction of emotional
distress. Stafford v. Jackson County, 8/4/17, Nashville, Bennett, 11 pages.

COMMERCIAL LAW: When plaintiffs executed contract to purchase lot

on 6/16/06, transaction closed on 6/30/06, plaintiffs learned, for first time in
11/09 that public sewage disposal was not available to lot, because of this
deficiency, plaintiffs were restricted to dwelling with only two bedrooms,
and plaintiffs filed complaint against various entities and individuals
involved in sale, evidence did not preponderate against trial courts finding
that there were misrepresentations about existence of public sewer; trial
court did not err in rescinding contract, thereby entitling plaintiffs to return
of $123,000 purchase price of lot; trial court did not err in awarding
plaintiffs attorney fees after finding defendant realty company violated
Tennessee Consumer Protection Act. Hall v. Eagle Rock Development
LLC, 7/31/17, Knoxville, Susano, 13 pages.
FAMILY LAW: In case in which parties divorced after 30 years of
marriage, trial court did not abuse discretion in awarding wife alimony of
$500 per month for 144 months, or 12 years, when wife, who was 50 years
old at time of divorce, was earning approximately $2,700 per month as
secretary of school board, it is unlikely that she could obtain additional
training to allow her to earn higher salary before she reached retirement, and
alimony award was designed such that wife would receive payments until
she reached age (62) at which she could claim Social Security retirement
benefits; due to disparity in income and relative earning capacity between
two parties, trial courts award of transitional alimony should be modified to
award of alimony in futuro, and under circumstances, award of alimony for
period of 144 months, or 12 years, constitutes long-term support. Roby v.
Roby, 8/1/17, Nashville, McBrayer, 7 pages.

GOVERNMENT: Plaintiff sent request first via email and telephone on

3/24/14 and again by email on 3/31/14 to Sumner County Board of
Education (Board) seeking records policy for Board pursuant to Tennessee
Public Records Act (TPRA), but plaintiffs request was denied by Board
because plaintiff failed to make his request by mail or in person, per Boards
policy and practice, trial court properly held that Boards refusal to provide
requested records to plaintiff was unlawful and that plaintiffs request, made
via email and telephone, was compliant with TRPA; trial court did not err in
finding plaintiffs 3/31/14 email request invalid pursuant to requirements of
TPRA when request was overly broad and insufficiently detailed to enable
custodian to identify records sought. Jakes v. Sumner County Board of
Education, 7/28/17, Nashville, McClarty, concurrence by McBrayer, 16 pages.


CRIMINAL PROCEDURE: In murder case, trial judge did not err by

denying defendants motion to suppress his statement to police when,
although neuropsychologist testified that defendant suffered from
neurocognitive deficits that prevented her from fully comprehending
consequences of waiving her constitutional rights to cooperate with police,
defendant was twice provided with Miranda warnings and nevertheless
agreed to waive them, once in writing, and there is nothing in video
recording of defendants statement suggesting that defendant was incapable
of voluntarily waiving her rights and providing statement to police. State v.
Baker, 7/31/17, Nashville, Witt, 17 pages.
CRIMINAL PROCEDURE: In aggravated robbery case, state did not
commit prosecutorial misconduct by asking police officer to describe
clothing defendant was wearing hours after robbery when officer did not
testify about specific details of defendants apprehension in violation of trial
courts earlier ruling. State v. Jackson, 7/28/17, Jackson, Ogle, 9 pages.

CRIMINAL PROCEDURE: In case in which defendant was charged with

DUI and DUI per se, trial court erred in granting defendants motion to
suppress his blood alcohol report due to states destruction of blood sample;
state was not required to preserve defendants blood sample for testing
pursuant to TCA 55-10-408(e), and statute does not give defendant right to
test sample of blood collected and tested by state; destruction of blood
sample by Tennessee Bureau of Investigation pursuant to its 60-day policy
does not violate statute. State v. Tjornhom, 8/1/17, Nashville, Ogle, 6 pages.

CRIMINAL PROCEDURE: One-year statute of limitation for filing

petitioners post-conviction petition began to run not when Tennessee
Supreme Court issued its opinion affirming decision of Court of Criminal
Appeals, but when Tennessee Supreme Court denied petitioners petition to
rehear its opinion. Clark v. State, 7/31/17, Nashville, McMullen, 5 pages.


CONSTITUTIONAL LAW: When plaintiff was arrested, charged, and

indicted for reckless driving and resisting arrest, based on false statements
of defendant officer, district court erred in granting defendant summary
judgment on plaintiffs malicious prosecution claim under 42 USC 1983;
although defendant may not have directly spoken with prosecutor
regarding case, because he swore out warrant affidavit that was submitted
to night commissioner and was only witness to testify at preliminary
hearing, he at least influenced or participated in prosecution decision;
exception set forth in King v. Harwood, 852 F3d 568 (6th Cir. 2017),
applied to overcome conclusive presumption that indictment by grand jury
establishes probable cause; there is genuine dispute of material fact as to
whether plaintiff suffered deprivation of liberty by being detained past time
necessary to enroll her in pretrial services program; defendant is not
entitled to absolute immunity for false statements he made in his warrant
affidavit; plaintiff clearly established Fourth Amendment right to be free
from seizure and prosecution based on fabricated evidence, and defendant
violated these rights by using his false statements as basis for establishing
probable cause, resulting in initiation of prosecution against plaintiff, and
defendant is, therefore, not entitled to qualified immunity. Miller v.
Maddox, 8/3/17, Donald, 13 pages, Pub.


WORKERS COMPENSATION: When employee sustained left shoulder

injury while working for employer, doctor performed surgery to repair torn
rotator cuff, settlement on 3/15/16 provided that employer would pay
reasonable and necessary authorized future medical expenses which are
directly related to injury, on 4/13/16, employee presented to doctor with
complaints of increased pain starting after lifting grandchildren and using
mop at his new job, MRI was positive for partial rotator cuff tear, and
employer denied further medical treatment, evidence preponderates against
finding that current need for medical treatment is related to original injury at
employer when there was no medical opinion linking need for treatment to
original incident. Bufford v. Northwest Human Resource Agency, 5/24/17,
Jackson, Phillips, 8 pages.

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: