TAM-BYTES September 30, 2013 Vol. 16, No.

39
2013 TAM CLE CALENDAR

Audio Conferences
Oops, It Happened Again: Inadvertent Disclosure Under Federal Rule of Evidence 502, 60-minute audio conference presented by Wayne Morse, Birmingham attorney, on Thursday, October 10 at 10 a.m. (Central), 11 a.m. (Eastern). Fair Credit Reporting Act: Add a Revenue Stream to Your Firm and Make Happy Clients, 60-minute webinar presented by John Watts, Birmingham attorney, on Tuesday, October 15 at 10 a.m. (Central), 11 a.m. (Eastern). Taxes in Tennessee Divorce Cases: An Overview of Intermediate and Advanced Issues That Can Arise, 90-minute webinar presented by Rosemary Frank, Brentwood financial services professional, on Thursday, October 24 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN & WHERE: 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 (Oct. 18): Judge Karen D. Webster, Shelby County Probate
Court; William (Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; Matt Rhoads, The Bailey Law Firm; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY (Oct. 25): 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 (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; 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

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs
Lyle, and Judge Tim Easter; and attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

TENNESSEE WORKERS COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 WHERE: The Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers comp system; hear about issues arising with future medical benefits, causation, and pain management; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13

FAMILY LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, December 5-6 WHERE: Nashville at the Nashville School of Law *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit FACULTY: Chancellor James F. Butler, Judge Robert L. Childers, and Judge Phillip
Robinson; attorneys Amy J. Amundsen, Rosemary Frank, David Garrett, Barry Gold, Jimmy Helton, Lewis Jenkins, Marlene Moses, Kevin Shepherd, Greg Smith, and Jacob Thorington For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/family-law-13

TENNESSEE TORT LAW CONFERENCE WHEN: Friday, December 13 WHERE: Nashville at the Nashville School of Law *Earn up to 7.5 hours of CLE hours, including 1 hour of DUAL credit FACULTY: Davidson County Circuit Judge Tom Brothers, Laura Bishop Baker, Brandon
Bass, Robert Burns, Daniel Clayton, Keith Dennen, Candi Henry, and Bryan Moseley For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-tort-law

IN THIS WEEKS TAM-Bytes In medical malpractice case, Court of Appeals holds plaintiffs filing of claim in Claims Commission pursuant to TCA 9-8-402 was effective compliance with notice requirements of TCA 29-26-121; Court of Appeals rules that trial court erred in concluding that plaintiffs sales of wide area network (WAN) service was taxable telecommunication service; Court of Appeals affirms award of refund of sales taxes to company that provided dial-up and broadband internet services to Internet Service Providers which, in turn, provided these services to end-users; Court of Appeals says that trial court did not err in failing to include principal amount of fathers deferred compensation account from TVA, which was valued at $2.7 million, as income for child support purposes, but court should have considered any appreciation in account or income stream generated therefrom as income in calculation of child support; and Court of Criminal Appeals, in drug case, rules that trial judge did not err in denying defendants motions to suppress evidence gleaned from wiretaps on several telephones when court issuing orders permitting wiretaps had substantial basis for finding of probable cause that targeted phone number was leased to, listed in the name of, or commonly used by the person being targeted.

COURT OF APPEALS TORTS: When plaintiff filed claim with Division of Claims Administration, as resident physician alleged to have engaged in negligence was purportedly connected to University of Tennessee training program at Erlanger Hospital in Chattanooga, and state moved Claims Commissioner to dismiss plaintiffs action for failure to comply with requirements set out in TCA 29-26-121(a), plaintiff complied with TCA 29-26121(a)s notice requirement by complying with claim notice requirements of TCA 9 8-402. Haley v. State, 9/25/13, ES, McClarty, 17 pages.
http://www.tncourts.gov/sites/default/files/haleyopn.pdf

TORTS: In suit alleging that defendant had improperly filled prescription for plaintiff causing plaintiff damages, trial court did not err in granting defendant summary judgment; defendant filed properly supported motion for summary judgment showing that plaintiff had failed to identify, as required by Scheduling

Order, any expert witnesses or any treating physician whom she intended to call to testify at trial and, as such, that plaintiff was unable to prove at trial essential element of causation; defendant negated essential element of plaintiffs claim, burden shifted to plaintiff, and plaintiff failed to carry burden. Fritz v. CVS Corp., 9/24/13, ES, Swiney, 7 pages. http://www.tncourts.gov/sites/default/files/fritzkopn.pdf DAMAGES: When plaintiff purchased farm in 1977 which adjoined farm owned by defendant, plaintiff had his land surveyed and markers placed at boundary between his property and defendants farm, confrontation arose when plaintiff replaced one of corner markers with large post, defendant threatened to have plaintiff arrested and jailed, plaintiff hired Griffin to cut twigs and brush along property line, while Griffin was working, defendant called sheriffs department to have plaintiff arrested for cutting trees on defendants property, deputy came to scene but declined to arrest plaintiff, defendant initiated criminal prosecution alleging criminal trespass, plaintiff was served with warrant on 6/21/09 but was not arrested, case was to be heard on 7/6/09 but was rescheduled to 8/17/09, and charge was dismissed on second date, and jury awarded plaintiff $66,500 in compensatory damages and $5,000 in punitive damages, and trial court suggested remittitur removing $40,000 of verdict for loss of enjoyment of life, evidence did not preponderate against trial courts determination that evidence did not support award for loss of enjoyment of life; award of punitive damages is vacated, and case is remanded for supplemental order setting forth trial courts findings as to Hodges factors and reasons supporting award of punitive damages. Massingille v. Vandagriff, 9/24/13, MS, Dinkins, 15 pages.
http://www.tncourts.gov/sites/default/files/massingille_j_opn.pdf

COMMERCIAL LAW: When decedents sister signed several admission documents on decedents behalf for purpose of admitting decedent to defendant health care facility, sister also signed optional arbitration agreement, following decedents death, her beneficiaries brought wrongful d eath action against healthcare facility, and healthcare facility moved to compel arbitration, trial court properly ruled that sister did not have authority to bind decedent to terms of arbitration agreement; fact that decedent never challenged sisters pattern of routinely signing admission documents on decedents behalf is not controlling as to arbitration agreement in question because decedent could not object to optional arbitration document she knew nothing about; defendant did not demonstrate that decedent impliedly gave authority to sister to sign document that she knew nothing about, especially one that her admission to facility was not dependent upon and was optional waiver of decedents constitutional rights; sister lacked apparent authority to sign arbitration agreement as there was no act or manifestation by decedent that would have been sufficient to induce defendant to believe that sister had authority to sign arbitration

agreement. Farmer v. South Parkway Associates L.P., 9/25/13, WS, Highers, Kirby not participating, 13 pages.
http://www.tncourts.gov/sites/default/files/farmerjeraldopn_0.pdf

COMMERCIAL LAW: In breach of contract case in which plaintiff sought to hold defendant personally liable for amount remaining on contract, ambiguity existed regarding identity of one of parties to contract because some of documents that comprised contract identified parties as plaintiff and defendants construction company, Fultz Holdings, LLC, without mention of defendant, while others identified parties as defendant and plaintiff without mention of Fultz Holdings; trial court did not err in admitting extrinsic evidence regarding intent of parties concerning which party was responsible to plaintiff for fulfilling terms of contract; based on extrinsic evidence, trial court did not err in dismissing complaint against defendant when documents reflect that parties intended to establish contract between plaintiff and Fultz Holdings and that plaintiff expected payment from Fultz Holdings, not defendant. Tennessee Asphalt Co. v. Fultz, 9/20/13, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/fultzopn.pdf

TAXATION: In case in which Department of Revenue (Department) assessed sales and use tax for plaintiffs sales of wide area network (WAN) service during period 1998 through 2003 on basis that service was telecommunication service as tha t term is defined in TCA 67-6-102(a)(32), and plaintiff denied its WAN constituted taxable telecommunication service because users were limited to accessing information on geographically remote computers, and WAN did not allow its users to communicate with one another, trial court erred in concluding that WAN service was taxable telecommunication service; primary purpose of WAN was to enable companys authorized users to access information related to plaintiffs business, not to provide communication between users, and fact that plaintiff itself did not provide information does not alter result. IBM Corp. v. Farr, 9/24/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/ibmcorp_opn.pdf

TAXATION: In case in which company, which provided dial-up and broadband internet services to Internet Service Providers that in turn provided these services to end-users, sought refund of sales taxes it had paid to state from 1/01 through 3/04 on ground that its services did not constitute telecommunications or telecommunication services as those terms are defined in TCA 67 -6-102(a)(32), trial court properly granted companys motion for summary judgment; company is entitled to refund of sales taxes paid when company provided internet access services, services were "enhanced rather than basic services, and true object of services was not taxable telecommunications or telecommunication transmissions. Level 3 Communications LLC v. Roberts, 9/20/13, MS, Cottrell, 13 pages.
http://www.tncourts.gov/sites/default/files/level3communications_opn.pdf

PROPERTY: In action to set aside quitclaim deed executed by decedent conveying decedents home to her grandsons, evidence did not preponderate against trial courts finding that decedents dementia was progressive and that she lacked functional and decision-making capacity to contract on date deed was executed; evidence did not preponderate against trial courts finding that decedent and her grandsons were in confidential relationship, that circumstances surrounding decedents signing of deed were suspicious, or that clear and convincing evidence did not establish that transaction was fair; evidence did not preponderate against trial courts finding that grandsons intentionally deceived decedent into deeding them house against her will. Francis v. Barnes, 9/23/13, WS, Farmer, 15 pages.
http://www.tncourts.gov/sites/default/files/francismalbriejaneopn.pdf

FAMILY LAW: Trial court did not err in failing to include principal amount of husbands deferred compensation account from TVA, which was valued at $2.7 million, as income for child support purposes, but court should have considered any appreciation in account or income stream generated therefrom as income in calculation of child support; income husband earned ($250,000) while working in Australia represents wages and should have been included as income for child support purposes, and it is irrelevant that employment was only temporary or may not provide recurring income Child Support Guidelines expressly include other types of non-recurring income, such as gifts, prizes, and lottery winnings or that husband incurred expenses while living in Australia; trial court erred in including alimony wife was receiving from husband as part of her income for child support purposes; trial court erred in failing to consider actual number of days husband spent with children in its calculation of child support. Ghorashi-Bajestani v. Bajestani, 9/24/13, ES, Frierson, 17 pages.
http://www.tncourts.gov/sites/default/files/bajestaniopn.pdf

CIVIL PROCEDURE: When tenant of residential property fell behind in rent, landlord filed forcible entry and detainer (FED) action in general sessions court against tenant and obtained judgment for past-due rent, tenant did not appeal judgment, and tenant filed suit month later in chancery court to set aside general sessions court judgment, trial court erred in holding that general sessions court did not have subject matter jurisdiction to adjudicate FED action because landlord did not give tenant statutorily-required notice of termination of lease; failure to give notice under Uniform Residential Landlord and Tenant Act is defense to be asserted by party who was not notified, but lack of proper notice does not deprive general sessions court of jurisdiction to adjudicate rights and liabilities of parties to FED action, including effect of defense such as failure to give notice. Thompson v. Groves, 9/26/13, WS, Kirby, 7 pages.
http://www.tncourts.gov/sites/default/files/thompsonropn_0.pdf

CIVIL PROCEDURE: When plaintiff architect rendered services to defendant real estate developer, four years later, developer failed to pay for architects services, architect recorded lien against real property to secure indebtedness, developer then promised architect he would pay indebtedness if architect released lien, architect released lien but still was not paid, and , four years later, architect filed suit to collect debt, trial court properly held that statute of limitation was tolled under doctrine of equitable estoppel. Hawks v. CD Development LLC, 9/25/13, WS, Kirby, 7 pages.
http://www.tncourts.gov/sites/default/files/hawksmopn.pdf

COURT OF CRIMINAL APPEALS EVIDENCE: Although defendant may open door to admission of non-testifying codefendants statement directly implicating defendant in commission of crimes , even if such evidence is otherwise barred by Confrontation Clause, prosecution may not gain, through device of joint trial, admission against one defendant of otherwise inadmissible evidence on happenstance that door to admitting evidence was opened by co-defendant; trial judge, during sentencing hearing, erred by submitting enhancement factors to jury and by allowing prosecutor to charge those factors, and error was not harmless when enhancement factors applied by trial court to defendants sentences cannot be separated from those found by jury; because sentencing procedure employed by trial court amounts to improper application of sentencing act, case is remanded for new sentencing hearing. State v. Price, 9/26/13, Knoxville, Thomas, 30 pages.
http://www.tncourts.gov/sites/default/files/pricejackandlarrythomascochranopn.pdf

CRIMINAL PROCEDURE: In drug case, trial judge did not err in denying defendants motions to suppress evidence gleaned from wiretaps on several telephones when court issuing orders permitting wiretaps had substantial basis for finding of probable cause that targeted phone number was leased to, listed in the name of, or commonly used by the person being targeted; applications for wiretaps, which targeted defendants phone, set out in detail both general information about difficulties involved in investigating large drug trafficking organization and particularly facts of case at hand which would indicate that wiretaps were not being routinely employed as initial step in criminal investigation. State v. King, 9/24/13, Nashville, Bivins, 42 pages.
http://www.tncourts.gov/sites/default/files/kingjopn_1.pdf

CRIMINAL PROCEDURE: Given defendants incarcerated status, delivery of warrant to jail officials immediately upon its execution satisfied requirements of TRCrP 41, which requires that officer executing warrant leave copy of warrant with

person(s) on whom search warrant was served. State v. Rogers, 9/23/13, Knoxville, Thomas, 44 pages.
http://www.tncourts.gov/sites/default/files/rogersroylenopn.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