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TAM-BYTES

October 9, 2017
Vol. 20, No. 41

TAM Webinars

Defending a Suit Under the Governmental Tort Liability Act, 60-


minute webinar presented by Emily Taylor, with Watson, Roach, Batson,
Rowell & Lauderback in Knoxville, on Wednesday, November 30, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/gtla-111517
or call (800) 727-5257

Jury Selection: The Art of Asking the Right Questions, 60-minute


webinar presented by Emily Taylor, with Watson, Roach, Batson, Rowell &
Lauderback in Knoxville, on Thursday, December 7, at 2 p.m. (Central), 3
p.m. (Eastern).
For more information, visit: www.mleesmith.com/jury-120717
or call (800) 727-5257

On-Site Events

Law Conference for Tennessee Practitioners


WHEN: THIS THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor


Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

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/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)

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

Family Law Conference for Tennessee Practitioners


WHEN: 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

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)

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

Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)

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


IN THIS WEEKS TAM-Bytes

Supreme Court, in issue of first impression, holds that victim of


especially aggravated robbery must suffer serious bodily injury during
commission of underlying theft, i.e., before accused has completed
theft of property;
Court of Appeals says when company owns real property containing
oil and natural gas deposits, and when extracted, oil and gas deposits
produce income for company, all taxes assessed upon companys
property relative to oil and gas remaining in ground are property
taxes, not severance tax;
Court of Criminal Appeals rules trial judge did not err by refusing to
accept negotiated plea agreement that would have allowed defendant
to plead guilty to first offense DUI with minimum sentence when
defendant had previous DUI convictions and defendants present
offense involved stopping his car in interstate travel lane; and
Court of Criminal Appeals, in case holding that counsel was
ineffective, cautions that without some sort of written agreement from
federal government, district attorneys should not make plea offers
which guarantee concurrent state and federal sentencing, defense
attorneys should not agree to such plea offers, and trial court judges
should not accept such plea agreements.

SUPREME COURT

CRIMINAL LAW: Victim of especially aggravated robbery must suffer


serious bodily injury during commission of underlying theft, i.e., before
accused has completed theft of property; robbery accomplished with deadly
weapon is complete once accused has completed theft of all property he or
she intended to steal; if victim suffers serious bodily injury during
commission of robbery, offense may constitute especially aggravated
robbery; it is appropriate to consider accuseds conduct and intent when
determining whether underlying theft has been completed. State v.
Henderson, 10/5/17, Jackson, Bivins, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/henderson.anthonio.opn_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee suffered fall from roof


on 12/15/16 while working for employer, employee was hospitalized,
underwent surgery, but died on 12/24/16, medical personnel obtained sample
of his blood, four days after his death, sample was received by Aegis, which
performed toxicology screening, Aegis indicated in 1/3/17 report that result
was positive for Carboxy-THC at amount of 24 ng/ml, employer sought
to have sample re-tested due to its belief that employee must have used
marijuana prior to accident because Carboxy-THC is inactive ingredient in
marijuana, and representatives of employees estate declined to sign release
presented by employer for second toxicology screening, trial court did not
abuse discretion in denying employers motion for order compelling
representatives of employees estate to sign medical release allowing
subsequent toxicology screening of employees blood sample; trial court was
not presented with evidence that 1/3/17 lab report constituted properly
conducted initial screen as described in Rule 0800-02-12-.07(2) when
employer presented no evidence that chain-of-custody procedures were
followed in accordance with TCA 50-6-107(c), especially in light of fact that
lab report on which it relies stated that specimens security seal was missing.
Guinn v. Barnard Roofing Co., 10/5/17, Conner, 7 pages.
http://trace.tennessee.edu/utk_workerscomp/919

COURT OF APPEALS

EMPLOYMENT: When Chattanooga-Hamilton County Hospital Authority


d/b/a Erlanger Health Systems and its executive management team (Erlanger)
laid off over 20-member police force, Erlanger Security Services Department
(SSD), and former employees of SSD filed suit for employment
discrimination, McDonnell Douglas burden-shifting analysis is appropriate for
Tennessee Human Rights Act discrimination and common law retaliatory
discharge claim; trial court properly granted summary judgment on racial
discrimination claims as plaintiff officers failed to establish prima facie case of
racial discrimination, and plaintiff Patton, supervisor, could not show that he
was replaced or treated differently than non-minority as all employees were
terminated; plaintiff officers failed to establish prima facie case of age
discrimination when they could not show that they were replaced by younger
persons or treated differently than younger persons because they were all
terminated together; officer failed to establish prima facie case of retaliation;
for five officers, complaints they cite as basis for retaliation occurred after they
were terminated; claims of two plaintiffs are barred because they accepted
severance agreements and signed releases. Lawrence v. Chattanooga-
Hamilton County Hospital Authority, 10/6/17, Knoxville, McClarty, 19 pages.
http://www.tncourts.gov/sites/default/files/jerry_lawrence_et_al._v_chattanooga-hamilton_county_hospital_authority_et_al..pdf
TAXATION: Coal Creek Company owns real property containing oil and
natural gas deposits, and when extracted, oil and gas deposits produce
income for company, all taxes assessed upon companys property relative to
oil and gas remaining in ground are property taxes, not severance tax; under
Tennessee Constitution, companys property, including its mineral interest,
is subject to taxation, and tax assessors properly went about appraising
mineral interest of property using income approach appraisal method.
Coal Creek Co. v. Anderson County, 10/5/17, Knoxville, Swiney, 19 pages.
http://www.tncourts.gov/sites/default/files/coal_creek_company_v._anderson_co._tennessee_et_al..pdf

FAMILY LAW: In case in which Burns claimed that she was decedents
common law wife Burns claimed that she and decedent were married
under laws of South Carolina, state in which common law marriages are
recognized as valid and, as such, she was entitled to inherit from decedent,
who died intestate, despite declaratory judgment finding of South Carolina
court that Burns was entitled to all spousal rights as an heir of decedent,
South Carolina law mandates decision that Burns is not surviving spouse of
defendant; Burns did not meet any of time requirements of relevant South
Carolina statute, and she did not file her Petition for Declaratory Judgment
of Common Law Marriage in South Carolina until almost 10 months after
decedents death on 11/20/14 and eight months after her appointment as
personal representative on 1/8/15. In re Estate of Smith, 10/4/17, Knoxville,
McClarty, 11 pages.
http://www.tncourts.gov/sites/default/files/in_re__estate_of_jimmy_l._smith.pdf

FAMILY LAW: Although close case, evidence preponderated against trial


courts determination that termination of mothers parental rights was in best
interest of their two children when mother has made tremendous progress
through her year-long attendance at Life Changers, 12-month, faith-based,
discipleship program, she has faithfully maintained relationship/visitation
with children before and after relevant time period, and children still refer to
her as mom at time of hearing; evidence preponderated against trial
courts determination that termination of fathers parental rights was in
childrens best interest when, while fathers progress was less significant
than mothers, he has maintained relationship with children since removal
and has faithfully attended visitation, he has consistently paid child support,
and he has successfully passed recent drug screens. In re Liam S., 10/4/17,
Knoxville, McClarty, 18 pages.
http://www.tncourts.gov/sites/default/files/in_re__liam_s._et_al..pdf
CIVIL PROCEDURE: When, on 3/19/03, probate court entered order
appointing Clemmons to serve as Administrative C.T.A. for decedents
estate, despite filing accounting on 9/15/04, Clemmons never filed another
accounting for estate during 10-year tenure as Administrator C.T.A.,
Clemmons was removed on 4/10/13 and Gontarek was appointed as
Successor Administrator C.T.A., Clemons pled guilty on 11/15/13 to
stealing over $770,000 from estate, and Gontarek, in his capacity as
Successor Administrator C.T.A., filed complaint against Metropolitan
Government of Nashville (Metro) asserting that employees in Probate Court
Clerks office had been cause of estates damages through negligent failure
to monitor Clemmons, trial court erred in determining that asserted claims
were time-barred as Clemmons was only individual with right to pursue any
claims on behalf of estate during his tenure as Administrator C.T.A. and,
inasmuch as claims are predicated on his own wrongdoing, he could not
have effectively maintained present suit; liability of Clemmons and Metro
would be joint and several, and Gontareks pursuit of relief against
Clemmons in another suit poses no bar to maintenance of this suit. In re
Estate of Link, 10/5/17, Nashville, Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/link.william.opn_.pdf

CIVIL PROCEDURE: Trial court did not abuse discretion by conditioning


grant of motion to set aside default judgment on defendant paying attorney
fees and expenses incurred by plaintiffs in filing motion for default
judgment, pursuing collection of that judgment, and responding to motion to
set aside default judgment. Abolins v. Santas, 10/3/17, Nashville, Swiney,
partial dissent by McBrayer, 17 pages.
http://www.tncourts.gov/sites/default/files/abolins.kristina.opn_.pdf
http://www.tncourts.gov/sites/default/files/abolins.kristina.corr_.sep_.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: Trial court erred in dismissing indictment


charging defendant with domestic assault by causing bodily injury;
indictment in variance or disagreement with general sessions judges
determinations after preliminary hearing does not render indictment void;
dismissal of charge at preliminary hearing does not prohibit state from
obtaining indictment by grand jury issuance of indictment by grand jury
marks beginning of new criminal proceeding against defendant; because
state properly sought and obtained indictment, no prosecutorial misconduct
occurred, and defendants due process rights were not violated. State v.
Lawson, 10/3/17, Nashville, Montgomery, 7 pages.
http://www.tncourts.gov/sites/default/files/lawson.opn_.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


third offense DUI, trial judge did not err by refusing to accept negotiated
plea agreement, i.e., defense counsel stated that defendant was willing to
plead guilty to first offense DUI, on day of trial when trial court determined
that it was not appropriate to allow defendant to plead guilty to first offense
DUI with minimum sentence requirements when defendant had previous
DUI convictions and that defendants present offense, i.e., stopping his car
in interstate travel lane, was as bad as it gets, with exception of DUI
crashes resulting in injury or death; valid reason for rejecting plea agreement
is that proposed sentence is considered too lenient under circumstances.
State v. Toban, 10/3/17, Nashville, Montgomery, 11 pages.
http://www.tncourts.gov/sites/default/files/toban.opn_.pdf

CRIMINAL PROCEDURE: In aggravated burglary and theft case, state


had right under TRE 615 to designate detective as investigating officer,
exempt from sequestration, and as such, detective was allowed to remain in
courtroom during testimony of other witnesses, unless there was compelling
reason for trial court to exclude him. State v. Petty, 10/5/17, Nashville,
Woodall, 17 pages.
http://www.tncourts.gov/sites/default/files/petty.opn_.pdf

CRIMINAL PROCEDURE: Trial counsel was ineffective because he


failed to advise petitioner adequately about implications of state court
judgments specifying that state and federal sentences are to run concurrently
as neither petitioner, trial counsel, district attorney, nor trial court possessed
power to impose concurrent sentencing on federal government; when trial
counsel assured petitioner that his sentences would be concurrent, he made
empty promise, and petitioner did not get what he bargained for; petitioner
was prejudiced in that there is reasonable probability that petitioner would
not have pled guilty if trial counsel had not errantly told him that his
sentences would run concurrently; without some sort of written agreement
from federal government, district attorneys should not make plea offers
which guarantee concurrent state and federal sentencing, defense attorney
should not agree to plea offers which guarantee concurrent state and federal
sentencing, and trial court judges should not accept plea agreements which
guarantee concurrent state and federal sentencing. Schaeffer v. State,
10/6/17, Knoxville, Easter, 15 pages.
http://www.tncourts.gov/sites/default/files/tyler_schaeffer_opinion.pdf
SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: District court did not err in denying


defendants motion to suppress evidence from search of his home when
detectives affidavit in support of search warrant stated that defendant met
victim at least once and had sent her sexually explicit messages, including
requests that she perform specific sexual acts and send him nude
photographs of herself; in-person meeting, prolonged sexual dialogue, and
specific sexual requests, when viewed together, are enough to conclude there
was fair probability of uncovering evidence that defendant violated Georgia
Code 16-6-5(a) by soliciting victim to place for purpose of committing
indecent acts. United States v. Sweeney, 10/3/17, Griffin, 10 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0551n-06.pdf

TRIAL COURTS

COMMERCIAL LAW: In suit concerning 4 Points Hospitality (LLC),


owner and operator of successful restaurant, The Pharmacy Burger Parlor
and Beer Garden in East Nashville, which was owned by two members,
Raley and Brinkman, who each hold 50% membership interest in LLC,
Brinkmans claim to terminate membership of Raley in LLC is granted when
evidence at trial established that Raley willfully or persistently committed
material breach of LLC documents, or of duty owed under TCA 48-249-403
to LLC or to other members or holders, or engaged in conduct relating to
LLCs business that makes it not reasonably practicable to carry on business
with member, as Raley was unable to carry his burden of proof as fiduciary,
managing member of LLC, to account for and demonstrate separateness of
property and funds of LLC from his personal funds and his other businesses
in amount of $315,552 and as additional breaches of Raley as managing
member that evidence established were underpayment of salary to Brinkman
of $371,245 and $227,445 in distributions. Raley v. Brinkman, 7/17/17,
Davidson Chancery, Lyle, 65 pages.
https://www.tncourts.gov/docs/documents/trial-court/biz-court-terrell-raley-v-cees-brinkman-7-17-17-16-196-bcpdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employer fired employee, who returned


to work following injury, for cause, precluding recovery of increased
benefits, when employees misconduct included behaving rudely or crassly
enough to warrant complaints from customers, using profanity, and angrily
confronting other drivers when arguing with his supervisors about shifting
loads, and when employee presented insufficient evidence that his
termination was pretext. Ingram v. Grocers Ice & Cold Storage Co.,
7/28/17, Nashville, Baker, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1868&context=utk_workerscomp

WORKERS COMPENSATION: Employee, event staff employee, did not


come forward with sufficient evidence from which to conclude she is likely
to prevail at hearing on issue of whether employee provided adequate notice
of injury to employer when employee testified that on 6/9/16, she told
employers office manager that co-worker had stepped on her foot and
crushed her middle toe, employee claimed to have told store manager of
claimed injury, according to employee, neither office manager nor store
manager completed necessary paper work to trigger medical benefits, office
manager countered that employee never reported work-related injury until
she filed Petition for Benefit Determination in 11/16, employee did not
provide adequate notice of injury to employer when employee saw doctor
within two weeks of her claimed injury, she did not tell doctor about work
injury to her left foot, doctor did not observe any new wounds, doctor found
her foot was stable, doctors records never mentioned employer, and
doctors records did not mention that co-worker stepped on employees foot
until 9/16 after doctor amputated her toe. Halmon v. Contemporary Services
Corp., 7/28/17, Memphis, Seymour, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1865&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:
www.tncourts.gov