TAM-BYTES July 22, 2013 Vol. 16, No.

29
2013 TAM CLE CALENDAR

Audio Conferences
Business Entity Laws in Tennessee: What Every Litigator Must Know , 60minute webinar presented by Richard Spore, Memphis attorney, on Thursday, August 8 at 2 p.m. (Central), 3 p.m. (Eastern). Covenants Not to Compete: Overview and Drafting Tips for Tennessee Attorneys, 60-minute webinar presented by David Johnson, Nashville attorney, and Danny Van Horn, Memphis attorney, on Tuesday, August 27 at 2 p.m. (Central), 3 p.m. (Eastern). HIPAA and HITECH Act: The Impact of New Rules on Your Practice, 60minute webinar presented by Anne Sumpter Arney and Susan High-McAuley, Nashville attorneys, on Thursday, August 29 at 2 p.m. (Central), 3 p.m. (Eastern). From Smartphones to iPads: Legal Issues When Employees Bring Their Own Devices to Work, 60-minute webinar presented by James Crumlin, Nashville attorney, on Thursday, September 5 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate

PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court; William
(Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: Donald Farinato, Holbrook Peterson Smith; Monica Franklin,

CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY: Elaine Beeler, Clerk & Master, Chancery Court for 21st Judicial
District (Hickman, Lewis, Perry, and Williamson counties); Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

IN THIS WEEKS TAM-Bytes Court of Appeals, in automobile accident case, vacates jurys award of zero damages in case in which plaintiff suffered injury that caused encapsulation around her breast implants to rupture; Court of Appeals, in automobile accident case, affirms jurys award of $640,000 in damages for lost earning capacity when economist calculated lost earning capacity using two different scenarios one based on assumption that

plaintiff would find and return to full-time employment at $8.50 per hour with benefits and other based upon study regarding employment of persons with disabilities and jury adopted first scenario; Court of Appeals affirms trial courts finding that material change in circumstances occurred warranting modification of permanent parenting plan based on mothers move to Florida which brought her closer to father and child; Court of Appeals, in reversing trial courts order terminating fathers child support obligation, says that by consenting to prior agreed order enrolling Hawaii divorce decree without modification of duration of child support, father agreed to assume obligation to pay child support until age 23, and as such, this agreement, as incorporated into Tennessee courts order, is enforceable; Court of Appeals says that while TCA 63-6-214(b)(20) allows Board to impose reciprocal discipline on licensed Tennessee physicians against whom another state takes disciplinary action, statute contains no requirement or implication that Boards choice of sanction must be comparable to that of other disciplining state; Court of Criminal Appeals rules officers discovery from law enforcement agency that tags on vehicle are not registered to vehicle in question is sufficient reasonable suspicion to support investigatory stop; and Court of Criminal Appeals says search of clothing in possession of law enforcement as result of defendants arrest is exception to warrant requirement.

SUPREME COURT CIVIL PROCEDURE: Pilot project under Supreme Court Rule 13 to assess feasibility of contracting with attorneys, law firms, or associations of attorneys for representation of indigent defendants facing contempt charges for failure to pay child support, is extended to 6/30/14. In re Supreme Court Rule 13, Section 7, 7/10/13, Nashville, 2 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_extending_rule_13_pilot_project_7-10-2013.pdf

COURT OF APPEALS TORTS: In suit by plaintiff, visitor to defendants nursing home, who was injured when door swung into her, trial court properly granted defendant summary judgment; taking strongest legitimate view of evidence in plaintiffs favor, facts did not establish that doors constituted defective or dangerous condition when evidence provided by defendant showed that doors were properly installed and functioning, that they complied with applicable codes, that defendant made periodic inspection of

doors, and that there were no reports of incidents or injuries regarding doors. Christian v. Ebenezer Homes of Tennessee Inc., 7/17/13, MS, Dinkins, 9 pages.
http://www.tncourts.gov/sites/default/files/christiana._opn.pdf

DAMAGES: In case in which refrigerator being hauled by defendants fell from truck and collided with plaintiffs vehicle, material evidence did not support jurys award of zero damages when plaintiff suffered injury in accident that caused encapsulation around her breast implants to rupture, allowing silicone to migrate to outside tissues and cause severe inflammatory reaction; on issues of pain and suffering, permanent injury, and loss of enjoyment of life, in addition to medical expenses, material evidence did not support jurys award of zero damages when plaintiff testified that she had suffered not only physical pain, but also significant stress, shame, and humiliation as result of injury to her breasts and ensuing symptoms and treatment, and when she was embarrassed because of resulting disfigurement. Wilhoit v. Rogers, 7/12/13, ES, Frierson, 17 pages.
http://www.tncourts.gov/sites/default/files/wilhoit.opn_-_final.pdf

DAMAGES: Material evidence supported jurys award of $643,000 in damages for lost earning capacity when jury accepted testimony of expert, economist, who calculated lost earning capacity using two different scenarios under assumption that plaintiff would find and return to full-time employment at $8.50 per hour with benefits, expert calculated economic damages to be $643,167, and based upon study regarding employment of persons with disabilities, expert calculated economic damages to be $698,115 and jury adopted first scenario. Ardry v. Home Depot U.S.A. Inc., 7/10/13, MS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/ardryg_opn.pdf

ESTATES & TRUSTS: When creditor filed claim against decedents estate for value of cattle and equipment, personal representative for estate filed exception to claim, and creditor filed amended claim seeking to enforce attached handwritten contract, trial court did not err in dismissing amended claim; language of TCA 30-2306(d) unambiguously provides that receipt of actual notice of probate proceedings from personal representative is not required for creditor who has timely filed claim against estate; facts did not rise to level of extraordinary circumstances sufficient to warrant exception to statutory deadline for filing amended claims when, despite claimants contention that his cause was prejudiced by lack of time to amend his complaint, after personal representative filed her exception to original claim, claimant had 33 days to respond to alleged deficiencies and file his amended claim within deadline. In re Estate of Miller, 7/12/13, ES, Frierson, 11 pages.
http://www.tncourts.gov/sites/default/files/millerjestateopinion.pdf

PROPERTY: In suit by buyers of house against their real estate agent, sellers real estate agent, and others alleging that defendants concealed fact that homes garage violated neighborhood restrictive covenant that it be large enough to accommodate at least two cars, trial court properly granted defendants summary judgment when testimony established that garage was large enough to accommodate at least two cars and when restrictive covenants did not require that garage have two doors or that garage be designed so as to enable cars to be parked side-by-side. Woods v. Lowrey, 7/15/13, ES, Susano, 8 pages.
http://www.tncourts.gov/sites/default/files/woodsjc.pdf

FAMILY LAW: In case in which father, who lived in Florida, was designated childs primary residential parent at time of divorce in 2011, and after mother moved to Florida to be closer to father and child, trial court modified parenting schedule to allow mother more time with child, evidence did not preponderate against trial courts finding that material change in circumstances occurred warranting modification of permanent parenting plan based on mothers move to Florida which brought her closer to father and child; trial courts statement during divorce hearing encouraging mother to move to Florida is not proper basis to conclude that mothers move was reasonably anticipated at time final decree and permanent parenting plan were entered; although law in Tennessee states that move, in and of itself, does not constitute material change in circumstances, these cases generally concern change in custody order or petition by primary residential parent to move out of state, rather than mere change in parenting schedule motivated by alternative residential parents move. Iman v. Iman, 7/16/13, WS at Nashville, Stafford, 19 pages.
http://www.tncourts.gov/sites/default/files/imanw_opn.pdf

FAMILY LAW: In case in which parties were divorced in Hawaii, under Hawaii divorce decree, father was obligated to pay child support for parties two children until they finished their post-high school education or until they reached age 23, whichever was earlier, parties and children later moved to Tennessee, years later, Tennessee court entered agreed order assuming jurisdiction over case, enrolling Hawaii divorce decree, and adopting parties agreed permanent parenting plan, parenting plan was silent on duration of fathers child support obligation, after both children reached age 18, father filed motion to terminate his child support obligation, arguing that he is not obligated to support his children beyond age of majority under Tennessee law, and Tennessee court granted fathers motion and terminated his child support obligation, by consenting to prior agreed order enrolling Hawaii divorce decree without modification of duration of child support, father agreed to assume obligation to pay child support until age 23, and as such, this agreement, as incorporated into Tennessee courts order, is enforceable; duration provision in Hawaii divorce decree did not simply go away by operation of law when it was enrolled in Tennessee, and hence, trial judge erred in granting fath ers motion to

terminate his child support obligation. Johnston v. Harwell, 7/16/13, WS at Nashville, Kirby, 14 pages.
http://www.tncourts.gov/sites/default/files/johnstong_opn.pdf

CIVIL PROCEDURE: When creditor sought to enroll in Tennessee deficiency judgment obtained in Arkansas and defendant debtors contended that Arkansas judgment should not be given full faith and credit in Tennessee, alleging, inter alia, fraud exception to Full Faith and Credit Clause, trial court did not err in enrolling Arkansas judgment; debtors accused creditor of purported fraudulent bidding on real property that secured note plaintiffs guaranteed, but these are allegations of intrinsic fraud, related to factual issues underlying Arkansas judgment and are claims that could have been made in underlying Arkansas trial court proceeding or in appeal of Arkansas judgment; while debtors cloak their alternative argument that TCA 35-5-118 and cases applying it demonstrate that Tennessees public policy against enforcing deficiency judgment if sale price for property securing debt is inadequate and so far below market price as to shock consciousness of court in terms of public policy, they actually simply seek to resist enforcement of debt by asserting in Tennessee defense that could have and should have been asserted in course of underlying Arkansas proceedings. BancorpSouth Bank v. Johnson, 7/16/13, WS, Kirby, 9 pages.
http://www.tncourts.gov/sites/default/files/bancorpsouthopn_0.pdf

GOVERNMENT: In case in which Tennessee Board of Medical Examiners (Board) revoked physicians medical license after New York State Board for Professional Medical Conduct had revoked physicians New York medical license, chancery court properly reversed and vacated Boards order; while TCA 63-6-214(b)(20) allows Board to impose reciprocal discipline on licensed Tennessee physicians against whom another state takes disciplinary action, statute contains no requirement or implication that Boards choice of sanction must be comparable to that of other disciplining state; Boards 2-to-1 decision to revoke physicians Tennessee medical license was based on erroneous belief that Board had to mirror New York Boards choice of sanction, but by mirroring New York Boards choice of discipline, Board rendered arbitrary or capricious decision; case is remanded to chancery court with instructions to remand to Board for reconsideration of sanction. Oni v. Tennessee Department of Health, 7/17/13, MS, Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/onia_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: Officers discovery from law enforcement agency that tags on vehicle are not registered to vehicle in question is sufficient reasonable suspicion to support investigatory stop; officer does not need to see vehicle in motion

for facts to support conviction for driving on cancelled, revoked, or suspended license circumstantial evidence that defendant was driving on public highway is sufficient to support conviction for driving on cancelled, suspended, or revoked license; because there was valid reason to tow defendants car there was no passenger with defendant to drive car after defendant was arrested for driving on cancelled, suspended, or revoked license officers inventory search correctly included pill fob on defendants key ring. State v. Seay, 7/16/13, Nashville, Smith, 9 pages.
http://www.tncourts.gov/sites/default/files/seayjohnopn.pdf

CRIMINAL PROCEDURE: Search of clothing in possession of law enforcement as result of defendants arrest is exception to warrant requirement; because there was probable cause to arrest defendant for murder before his boots were tested officers obtained defendants boots from storage where they were kept while defendant was in custody search was properly conducted without warrant. State v. Baker, 7/17/13, Nashville, Smith, 23 pages.
http://www.tncourts.gov/sites/default/files/bakerstephenopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of rape of 6year-old child, because judgment of conviction was not stamp-filed by clerk, there is nothing to show that defendants motion for new trial was filed late; only file-stamp or other similarly designated marking by trial court clerk can suffice to show what date judgment was filed, and handwritten notation on judgment form above preprinted Date of Entry of Judgment without being signed by trial court clerk is not indication of when judgment was filed; trial judge properly ruled that victims statements to his mother when she found soiled t-shirt after victims mother found soiled t-shirt under victims bed, she became upset and in loud voice yelled, who the hell put his shit on this shirt and put it under this bed?, and victim instantly came down hallway and told his mother about being sexually assaulted by defendant were admissible under excited utterance exception to hearsay rule; proof that victim immediately came to his room and instantly told his mother about incident when she was upset about finding shirt and being confrontational, is circumstantial evidence that victims normal reflective thought process had been suspended. State v. Kimble, 7/22/13, Jackson, Woodall, concurrence by Smith, 11 pages.
http://www.tncourts.gov/sites/default/files/kimblekennyopn.pdf http://www.tncourts.gov/sites/default/files/kimbleconcurring_0.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to 14 counts of aggravated burglary, one count of burglary of automobile, and 17 counts of theft and was given effective sentence of 22 years, defendants sentence was not excessive; trial judges refusal to apply as mitigating factor that defendants conduct neither caused nor threatened serious bodily injury there was no one at home during any of defendants burglaries was error and tantamount to per se rule barring consideration of this mitigator in all aggravated burglary cases; trial judge erred in applying two

enhancement factors leadership in commission of offense and commission of offense involving two or more criminal actors when there was no evidence that defendant ever had accomplice or that anyone else was ever intentionally involved with his crimes; trial courts mere error in application of enhancement and mitigating factors does not provide basis for reversing defendants sentence if sentence imposed was reasonable and consistent with principles and purposes of sentencing; defendants 22-year sentence is affirmed. State v. Flevaris, 7/18/13, Knoxville, Williams, 7 pages.
http://www.tncourts.gov/sites/default/files/flevarisopn5_1.pdf

PUBLIC CHAPTER GOVERNMENT: Moratorium is established from 4/15/13 through 5/15/14 against any municipality extending its corporate limits by means of annexation by ordinance upon municipalitys own initiative in order to annex territory bei ng used primarily for residential or agricultural purposes. 2013 PC 441, effective 5/16/13, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0441.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/