TAM-BYTES June 10, 2013 Vol. 16, No.

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2013 CLE CALENDAR Audio Conferences Liability of Insurance Agents: The Ins and Outs of Handling Claims in Tennessee, 60-minute webinar presented by Chad Naffziger, Jackson attorney, on Tuesday, June 25 at 2p.m. (Central), 3 p.m. (Eastern). Slips, Trips, and Falls in Tennessee: Premises Liability and Defenses in Tennessee, 90-minute audio conference presented by Bryan Moseley, Murfreesboro attorney, on Wednesday, June 26 at 10 a.m. (Central), 11 a.m. (Eastern). Impact of the Greenbank Decision: Challenges to Foreclosure Sales in Tennessee, 60-minute webinar presented by Sean Kirk, Nashville attorney, on Wednesday, June 26 at 2p.m. (Central), 3 p.m. (Eastern). Alimony in Tennessee: Recent Cases and Developments, 60-minute audio conference presented by Kevin Shepherd, Maryville attorney, on Thursday, June 27 at 2p.m. (Central), 3 p.m. (Eastern). Tennessee Conservatorship Laws: What Attorneys Must Know About 2013 Changes, 60-minute webinar presented by Rebecca Blair, Brentwood attorney, on Thursday, July 11 at 2 p.m. (Central), 3 p.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com IN THIS WEEKS TAM-Bytes Court of Appeals affirms grant of summary judgment to defendants, driver and owner of car, in case in which driver unexpectedly blacked out just prior to car colliding head on with van driven by plaintiff; Court of Criminal Appeals holds fact that defendant was not aware that his family had contacted attorney or that attorney retained by his family was attempting to contact him did not invalidate defendants otherwise knowing and intelligent waiver of his rights prior to speaking with police;

In reducing conviction for theft of iPad to theft of $500 or less, Court of Criminal Appeals says items replacement value is only relevant inquiry when fair market value of stolen property cannot be ascertained; Court of Criminal Appeals, in case in which trial counsel was constable at time he represented petitioner, says that counsel had conflict of interest and should have disclosed position of constable to petitioner, but that counsels deficient performance did not prejudice petitioner; General Assembly rewrites Workers Compensation Law, effective July 1, 2014; U.S. Supreme Court rules that police may take DNA samples when booking individuals arrested for serious crimes; and Sixth Circuit affirms ruling that defendant was contributorily liable for vendors trademark infringements when defendant continued to rent space and facilities at his flea market to vendors he knew or should have known were engaging in infringing activity.

COURT OF APPEALS TORTS: In suit by plaintiff whose van was struck head on by car that was weaving in and out of traffic, trial court properly granted defendants (driver of car and company that owned car) summary judgment when defendants presented affidavits indicating that driver unexpectedly blacked out just prior to collision, probably as result of her diabetic condition; any failure of memory on drivers part was not sufficient to raise material question as to whether her loss of consciousness on day of accident would have been foreseeable to reasonably prudent person. Smith v. General Tire, 5/30/13, MS, Cottrell, 8 pages.
http://www.tncourts.gov/sites/default/files/smithg_opn_1.pdf

INSURANCE: In case in which homeowners claimed that cracks in exterior bricks of their home were caused by blasting in neighborhood, insurer denied coverage under homeowners insurance policy, and jury returned verdict in favor of homeowners, judgment is reversed because, when viewed most favorably to homeowners, evidence showed that cracks in their home were caused by shock waves or vibrations triggered by nearby blasting and that damage claimed falls within exclusion that expressly includes earth movement caused by natural or manmade events. Hearn v. Erie Insurance Exchange, 5/31/13, MS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/hearng_opn.pdf

CONTRACTS: In case in which parties entered into two contracts for sale of commercial property, provision in second contract that was not included in first provided that buyer would retain $75,000 of contract price if access road to property was not completed by certain date, completion was defined as occurring

upon the dedication and turning the streets over to the town of Woodbury and/or Cannon County, Tennessee, and buyer filed petition for declaratory judgment, asking court to find that completion had not occurred and that he was therefore entitled to keep $75,000, $75,000 clause was not valid liquidated clause provision, but rather penalty. Bachour v. Mason, 5/30/13, MS, Cottrell, 7 pages.
http://www.tncourts.gov/sites/default/files/bachourj_opn.pdf

FAMILY LAW: Evidence preponderated against trial courts holding that it was in childs best interest for mother to remain his primary residential parent when mother, on numerous occasions, left 10-year-old child at home alone in evening to go socialize at local country club, mother showed child gun under her mattress and told him to use it for his protection if needed, and mother returned home, hours later, intoxicated; trial court erred in denying fathers petition to modify parenting plan to designate him as childs primary residential parent when fathers home will best serve childs physical and emotional needs, and child expressed his strong desire to live with father, such that he wanted to go to new school in father s district, despite missing his friends at his old school, in order to live with father. Maxwell v. Woodard, 5/31/13, WS at Nashville, Kirby, 27 pages.
http://www.tncourts.gov/sites/default/files/maxwelleaw_opn.pdf

FAMILY LAW: In case in which, at time of divorce, father was named primary residential parent of parties two children, and seven months later, father filed petition for modification of parenting plan in effort to reduce mothers parenting time, trial court did not abuse discretion in excluding evidence of mother s mental health prior to divorce when father did not explain how this evidence would have any bearing on issue of whether trial court should have further limited mothers time with children as of date of trial, and only evidence father introduced at trial to show mothers mental health constituted material change of circumstances was that she was taking more medication than she was taking before divorce, but mothers therapist testified that mother had not missed her appointments with him and that he had no reason to be concerned about mothers current emotional condition. Dowlen v. Dowlen, 5/30/13, MS, Cottrell, 8 pages.
http://www.tncourts.gov/sites/default/files/dowlense_opn.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of mothers parental rights to her daughter based on finding that mother had acted in wanton disregard of childs welfare when mother, who spent total of six or seven hours during one day in jail in months before termination petition was filed, was not in class of incarcerated or recently incarcerated parents to which TCA 36-1-102(1)(A)(iv) applies; evidence supported termination of mother s parental rights on ground of persistence of conditions when mother simply failed to

comply in a substantial manner with parental responsibilities. In re Courtney N., 5/31/13, ES, Susano, 16 pages.
http://www.tncourts.gov/sites/default/files/courtneynopn.pdf

FAMILY LAW: General Assembly did not intend, by enacting TCA 37-1103(a)(1), to strip jurisdiction from court that has handled divorce and post-divorce matters solely because parents disagree on how to address their child s medical needs, i.e., psychological and developmental issues although dispute between parents concerning their childs medical care may be sufficient to trigger dependency and neglect provision of TCA 37-1-103(a)(1), intention by legislature to always have such cases heard by juvenile court would have resulted in wholesale shifting of custody cases to juvenile court from specific courts vested by legislature with jurisdiction to make custody decisions in divorce cases and post-divorce matters solely because parents disagree on how best to address their childs medical needs. Holley v. Holley, 5/31/13, ES, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/holleypjopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In murder case, trial judge properly denied defendants motion to suppress his statement to police, in which he acknowledged having accidentally shot victim, when defendant was aware that he could have attorney present with him prior to questioning but waived his Miranda rights prior to speaking with police; fact that defendant was not aware that his family had contacted attorney or that attorney retained by his family was attempting to contact him did not invalidate defendants otherwise knowing and intelligent waiver of his rights. State v. Graham , 5/31/13, Jackson, Williams, 23 pages.
http://www.tncourts.gov/sites/default/files/fgrahamopn3.pdf

EVIDENCE: In case in which defendant was convicted of first degree felony murder of his girlfriends 5-month-old daughter, but defendant claimed crime was committed by his 8-year-old son, trial courts decision to exclude testimony of sons four teachers concerning sons propensity toward violence did not violate defendants constitutional right to present defense; defendant failed to establish that testimony of four teacher-witnesses was critical to his defense which was based on theory that prosecution had simply failed to meet its burden of proof and strong societal interests support exclusion of this type of character evidence when there was nothing to suggest that defendants son actually committed crime. State v. Johnson, 5/30/13, Jackson, Williams, 8 pages.
http://www.tncourts.gov/sites/default/files/ljohnsonopn5.pdf

CRIMINAL PROCEDURE: In murder case in which trial judge determined that jury was hopelessly deadlocked and that manifest necessity for mistrial existed, although trial court erred in declaring mistrial and dismissing jury without first engaging in procedure outlined in TRCrP 31(d)(2) which sets forth detailed procedure for trial courts to utilize in order to determine which offense jury has deadlocked on because defendant consented to declaration of mistrial and acquiesced in trial courts failure to follow mandates of TRCrP 31(d)(2), defendants retrial was not barred by constitutional protections against double jeopardy. State v. Leath, 6/3/13, Knoxville, Thomas, 44 pages.
http://www.tncourts.gov/sites/default/files/leathraynelladossettopn.pdf

CRIMINAL PROCEDURE: Although in any case involving sex violation, trial judge has inherent power to compel psychiatric or psychological examination of victim, when such examination is necessary to ensure just and orderly disposition of case, such power should be invoked only for most compelling of reasons, all of which must be documented in record, and this discretion should be exercised sparingly; compelling reasons include situations where substantial doubt is cast upon the victims sanity, or where there is a record of prior mental disorders or sexual fantasies, or where the story is incredible, and even in these situations, only if there is little or no corroboration to support the charge. State v. Fossett, 6/5/13, Jackson, Glenn, 12 pages.
http://www.tncourts.gov/sites/default/files/fossettterryopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of theft over $500 in connection with theft of iPad when trial court s valuation of iPad at $499 (iPad was purchased new few months earlier for $499 plus tax) could only be based on replacement value of iPad and not on estimate of its market value at time of offense; items replacement value is only relevant inquiry when fair market value cannot be ascertained, and testimony at trial estimated that fair market value of iPad was approximately $300 to $425 this amount would not exceed $500, even with tax included; defendants conviction is modified to one of theft of $500 or less. State v. Webster, 6/5/13, Nashville, Thomas, 8 pages.
http://www.tncourts.gov/sites/default/files/webstermichaelopn.pdf

CRIMINAL SENTENCING: In first degree murder case, evidence supported imposition of death penalty upon defendant when defendant killed 60-year-old victim to avoid being arrested defendant and his cohorts wanted to steal victims car and stated that victim had to die because she had seen their faces and because she had threatened to call police and committed murder in perpetration of aggravated robbery. State v. Freeland, 6/3/13, Jackson, Woodall, 27 pages.
http://www.tncourts.gov/sites/default/files/freelandjohntopn.pdf

CRIMINAL SENTENCING: TCA 40-35-302 and 41-2-147 provide to sheriff in whose custody defendant is placed discretion and authority to determine if defendant can participate in work-related programs pursuant to TCA 41-2-147 and receive 2 for 1 sentence credits allowed by TCA 41-2-147(b); trial court erred by imposing special condition in misdemeanor judgments which in effect prohibited sheriff of Madison County from carrying out his statutory responsibilities as to defendant, as they relate to TCA 41-2-17 and possible work release options. State v. Coley, 6/3/13, Jackson, Woodall, 5 pages.
http://www.tncourts.gov/sites/default/files/coleytimothyjamesopn.pdf

CRIMINAL PROCEDURE: In post-conviction relief proceeding in which petitioner argued that she received ineffective assistance of counsel because her trial counsel was Sumner County constable at time he represented her, counsels representation did not violate statutory prohibition of practice of law by constables as, when all statutes concerning constables and sheriffs are taken as whole and interpreted so that parts are consistent and reasonable, legislature did not intend to statutorily prohibit entirely practice of law by constable; because trial counsel had ability to arrest individuals in Sumner County, even though he maintained he did not actually arrest anyone, there was conflict of interest in his representation of petitioner in criminal trial; at minimum, counsel should have disclosed his position as constable to petitioner before representing her; counsels repres entation fell below reasonable standards of defense performance at criminal trial, but deficient performance was not prejudicial when there was no evidence that counsels position as constable affected his zealous representation of petitioner and there was overwhelming evidence of guilt. Brewington v. State, 6/6/13, Nashville, Smith, 19 pages.
http://www.tncourts.gov/sites/default/files/brewingtonbopn_0.pdf

PUBLIC CHAPTER WORKERS COMPENSATION: Revisions to Workers Compensation Law, effective 7/1/14, include (1) removal of dispute from trial court to claims court, with appeal to appeals board and then Supreme Court, (2) requirement that injury arise primarily in course and scope of employment, (3) replacement of doctrine of liberal construction, (4) no consideration of pain in assigning impairment rating, (5) increase in maximum total benefit to 450 weeks, and (6) lower multipliers. 2013 PC 289, effective 7/1/14, 28 pages.
http://www.tn.gov/sos/acts/108/pub/pc0289.pdf

U.S. SUPREME COURT CRIMINAL PROCEDURE: When officers make arrest supported by probable cause to hold for serious offense and bring suspect to police station to be detained in custody, taking and analyzing cheek swab of suspects DNA is, like fingerprinting and photographing, legitimate police booking procedure that is reasonable under Fourth Amendment; DNA identification of arrestees is reasonable search that can be considered part of routine booking procedure. Maryland v. King, 6/1/13, Kennedy, dissent by Scalia, 5-4, 50 pages.
http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

SIXTH CIRCUIT COURT OF APPEALS COMMERCIAL LAW: District court did not err in ruling that defendant was contributorily liable for vendors trademark infringements when defendant continued to rent space and facilities at his flea market to vendors he knew or should have known were engaging in infringing activity; district court did not abuse discretion in holding that defendants actions were willful, constituting exceptional case warranting award of attorney fees to plaintiffs. Coach Inc. v. Goodfellow, 5/31/13, McKeague, 12 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0155p-06.pdf

CONSTITUTIONAL LAW: In suit by business manager (plaintiff) who alleged that she was unconstitutionally terminated from Trustees office for Bedford County because of her open support for political rival, plaintiffs patronage dismissal fell within exception set forth in Elrod v. Burns, 427 US 347 (1976), which recognized that, although patronage dismissals are generally unconstitutional, party affiliation may be acceptable requirement for some types of government employment. Ray v. Davis, 6/4/13, Suhrheinrich, 14 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0550n-06.pdf

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