TAM-BYTES

J uly 7, 2014
Vol. 17, No. 27
2014 TAM CLE CALENDAR

Webinars
Paternity, Grandparent Visitation, and Other Disputes in Tennessee, 60-
minute webinar presented by Kevin Shepherd, Maryville attorney, on Thursday,
July 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Discovery Rules and Sanctions in Tennessee: What the Rules Really Mean for
Attorneys, 60-minute webinar presented by Candi Henry, Nashville attorney, on
Thursday, July 24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury
Trials, 60-minute webinar presented by William L. Pfeifer, Jr., Alabama
appellate attorney, on Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Piercing the Corporate Veil in Tennessee: What Your Business Clients MUST
Know, 60-minute webinar presented by Cole Dowsley, Franklin attorney, on
Thursday, August 14, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Live Event

Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26
Nashville School of Law

TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice,
including the latest products liability developments, trial tips from a trial judge,
handling medical records and private information, limitations on the use of HIPAA
protected documents in litigation, Affordable Care Act concerns, auto insurance
policies, negotiating with insurance adjusters, caps on damages, Medicare set-asides,
and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs and
defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven Fuller,
Bryan Moseley, David Randolph Smith, and Mathew Zenner.

*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit


IN THIS WEEKS TAM-Bytes

In suit seeking deficiency judgment following sale of property at foreclosure,
Court of Appeals rules 15.8% difference between appraised price and
foreclosure sale price, with nothing more, is insufficient to establish that
property was sold for amount materially less than its fair market value;
Court of Appeals says that for purposes of annexation moratorium preventing
municipalities from extending their corporate limits by means of annexation by
ordinance from 4/15/13 through 5/15/14, crucial date for purposes of
determining whether annexation is prohibited by TCA 6-51-122 is date upon
which annexation ordinance became operative, rather than date of actual
annexation; and
Court of Criminal Appeals rules trial court did not deny defendant his right to
compulsory process by appointing counsel for witness defendant subpoenaed
and allowing witness to assert his Fifth Amendment right not to testify.


SUPREME COURT

PROFESSION OF LAW: Provisions allowing Commission on Continuing Legal
Education and Specialization to award CLE credit to lawyers who participate as
mentor or mentee in mentoring program meeting standards established by
Commission are extended to 12/31/16. I n re Petition to Amend Supreme Court Rule
21, Section 4.07 (Mentoring Experiences), 7/1/14, Nashville, per curiam, 1 page.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_section_5k_-_cle_regulations_-_6-13-
2013.pdf


COURT OF APPEALS

TORTS: In health care liability action in which plaintiff alleged that child suffered
permanent mental and physical handicaps as result of negligent acts and/or omissions
by doctors during prenatal care and labor, as well as during childs delivery and
resuscitation at Gibson General Hospital on 8/5/91, trial court erred in concluding
that plaintiffs expert, OB/GYN from Bristol, Tenn., was not qualified to testify
under locality rule when although expert had no first-hand knowledge of standard of
care in Gibson County in 1990 and 1991, he was familiar with pertinent statistical
information about community, hospital and medical services and practices available
in area at that time, and under relaxed locality rule of Shipley, this is permissible to
qualify him to opine on standard of care in Gibson County; error in excluding
experts testimony was harmless when any standard of care evidence that he could
have provided found its way into record through testimony of two other experts; trial
court did not err in finding that testimony of defendants expert, neonatologist from
Huntsville, Ala., satisfied locality rule when although Bessemer, Ala., is larger
metropolitan area and has larger hospital than Gibson County, expert provided sound
explanation for his assertion that Bessemer and Gibson County are similar medical
communities for purposes of evaluating issues in case. Evans v. Williams, 6/30/14,
WS, Farmer, 17 pages.
http://www.tncourts.gov/sites/default/files/evansbrittanyopn.pdf

EVIDENCE: When plaintiffs property, which was stored in warehouse owned by
defendant, was subjected to water damage after roof of warehouse collapsed, plaintiff
filed suit seeking damages for value of his damaged property, and jury returned
verdict finding defendant 100% liable for plaintiffs loss and awarding damages of
$325,000, trial court erred in allowing evidence to be introduced regarding
defendants own claim for value of his lost or damaged goods stored in warehouse;
there existed no issue regarding whether defendant suffered loss due to accident or
value of any such loss, and hence, fact that defendant filed claim for $350,000 for
loss of his own property does not have any tendency to make existence of any fact
that is of consequence to determination of action more probable or less probable than
it would be without evidence; erroneous admission of evidence was not harmless
when, while evidence regarding value of plaintiffs lost inventory ranged from
$200,000 to $500,000, jurys award of $325,000 more closely comports with amount
of claim made by defendant. Hutsell v. Kenley, 6/27/14, ES, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/hutsell.pdf

INSURANCE: When insureds son, who was included in their coverage and was
driving vehicle registered to insured, struck motorcyclist, who died at scene,
motorcyclists survivors filed complaint for negligence and vicarious liability against
insureds, which was settled for $200,000 insureds paid $100,000 in excess of their
coverage to survivors and insureds filed suit against insurer and its agent, trial court
erred in granting summary judgment to insurer and agent on assumption of duty
claim; if agent regularly recommended and selected coverage for insureds, he had
duty to do so with reasonable care, and insurer and agent cannot affirmatively negate
element of insureds claim nor can they show insureds cannot prove element of
assumption of duty claim at trial; because summary judgment is inappropriate
regarding insureds claim of assumption of duty, insurer and agent cannot
affirmatively negate element of insureds claim under Tennessee Consumer
Protection Act (TCPA); if agent assumed duty or negligently assumed duty, he would
have failed to continue to act or negligently acted in such way as to violate TCPA;
agent was not negligent based on standard duty of care of insurance agent, and, as
such, insurer is not vicariously liable for claim of negligence; because claims
asserting agent assumed duty survive, claims alleging insurer is vicariously liable for
his actions or inaction and claims alleging insurer failed to supervise agent also
survive. Barrick v. State Farm Mutual Automobile I nsurance Co., 6/27/14, MS,
Ash, 9 pages.
http://www.tncourts.gov/sites/default/files/barrick.steven.opn_.pdf

COMMERCIAL LAW: When Whalens entered into agreement to purchase
property from defendant, Whalens subsequently entered into agreement with Mr. and
Mrs. Bone (Bones) to borrow purchase price in return for promissory note, secured
by deed of trust, parties closed purchase and sale of property on 1/19/12 at office of
US Title of Tennessee, Inc. (US Title), on 1/20/12, defendant, upset that he had not
received $900 in rent he believed Whalens owed him, returned to US Title office and
convinced staff there to accept his uncashed check from sale and give him
unrecorded deed, Whalens and Bones filed suit, evidence supported trial courts
finding that defendant committed common law tort of intentional interference with
contractual relationship between Whalens and Bones; trial court did not err by
awarding Whalens $110,000, difference in appraisal of property market value and
purchase price; trial court did not err by awarding Bones compensatory damages of
$76,734, thereby returning exact amount to Bones that they had loaned to Whalens to
facilitate purchase of property; trial court failed to conduct second phase of trial to
determine appropriate amount of punitive damages to award Whalens and Bones, and
case is remanded with instructions to conduct hearing on issue; trial court did not err
by vesting title to property in defendant, subject to Whalens and Bones judgment
liens. Whalen v. Quint Bourgeois, 6/27/14, ES, Frierson, 27 pages.
http://www.tncourts.gov/sites/default/files/whalen_opinion_final.pdf

CONTRACTS: When mother paid construction costs to build new home on her
sons land for both of them to reside, suit was filed when son refused to put mothers
name on deed after house was constructed, trial court found that son never intended
to convey inter vivos gift to mother and established resulting trust in favor of mother
in amount of $417,000, and appellate court found resulting trust was not available
remedy, evidence supported trial courts finding, on remand, that circumstances
supported finding of unjust enrichment; evidence did not preponderate against trial
courts finding that mothers contributions to construction of new house enhanced
value of sons property by $417,000 when son purchased property, warranty deed
recited actual consideration or value, whichever is greater, was $57,400, son valued
property at $600,000 after improvements, mother contributed $433,064 to construct
new house, and son contributed $15,979. I n re Estate of Ross, 6/30/14, MS,
Clement, 7 pages.
http://www.tncourts.gov/sites/default/files/estateofross.opn_.pdf

PROPERTY: Trial court properly granted summary judgment in suit by bank to
recover deficiency judgment after defendants defaulted on loan and following sale at
foreclosure of property securing debt; when all but one of valuations upon which
defendants relied were formed months or even years before or after time property
was sold at foreclosure, trial court correctly concluded that only relevant evidence
defendants presented in attempting to satisfy materially less standard was 2013
appraisal which valued property at $475,000 at time of foreclosure bank bid-in
property at foreclosure for $400,000; under both GreenBank v. Sterling Ventures
LLC, 38 TAM 11-3 (Tenn.App. 2012), relied upon by trial court, or more recent
decision in FirstBank v. Horizon Capital Partners, 39 TAM 16-5 (Tenn.App. 2014),
15.8% difference between appraised price and foreclosure sale price, with nothing
more, is insufficient to establish that property was sold for amount materially less
than its fair market value; defendants did not overcome statutory presumption that
foreclosure price represented propertys fair market value at time of sale. Capital
Bank v. Brock, 6/30/14, ES, Susano, 11 pages.
http://www.tncourts.gov/sites/default/files/capitalbankopn.pdf

PROPERTY: In case in which holder of easement (dominant estate) brought suit
against owner of land (servient estate) alleging interference with his use of easement
by servient estates construction of block building on easement, evidence did not
preponderate against trial courts determination that servient estates actions did not
constitute unreasonable interference with dominant estates use of easement for
ingress and egress. Halbrooks v. Durieux, 6/30/14, MS, Bennett, 16 pages.
http://www.tncourts.gov/sites/default/files/halbrooksd.opn_.pdf

PROPERTY: In case in which homeowners association brought declaratory
judgment action against homeowners to enforce developments restrictive covenants,
trial court properly determined that homeowners associations architectural review
committee (ARC) acted within its discretion in ordering homeowners to remove
improvements ARC found to be inconsistent with other homes in neighborhood, i.e.,
landscape border blocks surrounding flower beds in center of homeowners yards.
Avalon Sections 4, 6 & 7 Homeowners Association v. Chaudhuri, 6/26/14, MS,
Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/avalonsections.opn_.pdf

ESTATES & TRUSTS: After death of testator, his two putative non-marital sons
filed suit to set aside 2006 trust agreement in order to reinstate prior trusts, assets of
which were to be distributed to decedents issue at his death and also filed suit to
establish decedent as their biological father, trial court correctly dismissed petition to
establish paternity filed in probate case almost two years after admission of will to
probate in solemn form as any issue as to whether decedent was father of two
putative non-marital sons became moot at that point; complaint filed on 2/25/11 to
challenge 2006 trust agreement was timely as trust case did not involve inheritance
through statute regarding heirs of person dying without will; any assets to be
distributed to two putative non-marital sons from pre-existing trust(s) would be
pursuant to terms of trust document(s), not pursuant to intestate succession. Locke v.
Estate of Rose, 6/30/14, MS, Cottrell, 14 pages.
http://www.tncourts.gov/sites/default/files/lockem.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision to
modify parties parenting plan to designate mother, instead of father, as 5-year-old
childs primary residential parent when mother had remarried, she was no longer
employed, she worked in home caring for parties child as well as her three younger
children who were born after initial plan went into effect, and she had been acting
as de facto primary residential parent for child. I n re Harli B., 6/27/14, MS,
Clement, 8 pages.
http://www.tncourts.gov/sites/default/files/inreharli.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts denial of
mothers petition to modify parties parenting plan when mothers relocation to
Tennessee from Alabama, change in mothers work schedule to part-time flexible
work schedule, and aging of children did not create material change of circumstances.
McFarland v. Bass, 6/30/14, MS, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/mcfarlandjeannie.opn_.pdf

GOVERNMENT: In case in which trial court set aside annexation consent order
between City of Memphis (City) and property owners in affected area on basis of
subsequent passage of legislation allegedly affecting agreed-upon annexation
legislation amended TCA 6-51-122 and established annexation moratorium
preventing municipalities from extending their corporate limits by means of
annexation by ordinance from 4/15/13 through 5/15/14 because Citys ordinance
became operative prior to moratorium established by General Assembly, trial court
erred in setting aside consent order on basis of TRCP 60.02(5); fact that judgment
was entered by consent will not deprive court from considering motion to set aside
judgment pursuant to TRCP 60.02; crucial date for purposes of determining whether
annexation is prohibited by TCA 6-51-122 is date upon which annexation ordinance
became operative, rather than date of actual annexation; regardless of effective date
of actual annexation, annexation ordinance becomes operative 31 days after order is
entered sustaining ordinance in quo warranto action, when timely quo warranto
action has been filed, and thus, operative date of ordinance, which has been subject to
quo warranto action, is 31 days from entry of order sustaining ordinance. Silliman v.
City of Memphis, 7/2/14, WS, Stafford, 31 pages.
http://www.tncourts.gov/sites/default/files/sillimandopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: Trial court did not deny defendant his right to
compulsory process by appointing counsel for witness defendant subpoenaed and
allowing witness to assert his Fifth Amendment right not to testify; calling of witness
who will refuse to testify does not fill purpose of compulsory process, which is to
produce testimony for defendant, and when there is conflict between basic right of
defendant to compulsory process and witnesss right against self-incrimination, right
against self-incrimination is stronger and paramount right. State v. Hampton,
6/27/14, Jackson, Glenn, 14 pages.
http://www.tncourts.gov/sites/default/files/hamptoncharlesopn.pdf

PUBLIC CHAPTERS

COMMERCIAL LAW: New limits on sales of pseudoephedrine. 2014 PC 906,
effective 7/1/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0906.pdf

GOVERNMENT: New testing aligned with Common Core is delayed for one year.
2014 PC 905, effective 5/13/14 & 7/1/14, 7 pages.
http://www.tn.gov/sos/acts/108/pub/pc0905.pdf

CRIMINAL SENTENCING: Capital Punishment Enforcement Act provides for
use of electrocution to carry out death sentence if lethal injection is held
unconstitutional or Commissioner of Correction certifies that ingredient(s) essential
to carrying out death sentence by lethal injection is unavailable. 2014 PC 1014,
effective 7/1/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc1014.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: In case in which Moore was injured when he attempted to remove waste
container that Design-Fab, Inc. had overloaded, and Waste Management of
Mississippi, Inc. intervened because it had paid workers compensation for Moores
injuries, district court did not properly apply Tennessee law because it failed to
consider liability of General Electric Company (GE), who hired Design-Fab when
determining comparative fault of Moore and Design-Fab; just as defendant has right
to argue that fault should be allocated to nonparties, plaintiffs have right to have all
tort-feasors considered, including settling defendant GE, in allocation of fault;
without considering GEs liability, district court could not properly determine if
Moore was more than 50% at fault and thus precluded from recovering against
Design-Fab because it could not have accurately linked parties degrees of liability to
their percentages of fault; district court improperly granted Design-Fab summary
judgment when there were genuine disputes of material fact as to whether Design-
Fab knew not to overload container by weight, whether Moores actions in partially
hoisting container constituted common practice, and whether Moore appreciated that
containers weight posed serious risk of injury. Moore v. I ndustrial Maintenance
Service of Tennessee I nc., 7/1/14, Siler, 13 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0471n-06.pdf

CONSTITUTIONAL LAW: In case in which attorney (Moncier) filed suit under 42
USC 1983 challenging Tennessee Plan on grounds that it violates his (and people of
Tennessees) First and Fourteenth Amendment rights to ballot access and political
association, district court properly dismissed Monciers suit due to lack of standing
after determining that he alleged, at most, generalized grievance involving abstract
question of wide public significance; Moncier has no recognized right under U.S.
Constitution to run for office that, under state law, has already been filled. Moncier v.
Haslam, 6/30/14, Cole, 12 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0469n-06.pdf


TRIAL COURTS

COMMERCIAL LAW: In case in which plaintiffs claim of misappropriation of
trade secrets was dismissed, there was not sufficient basis of bad faith required for
award of attorney fees to defendant under TCA 47-25-1705; evidence did not
establish either bad motive or complete lack of evidentiary proof two broad
categories of bad faith cases. Hinson v. ORourke, 5/1/14, Davidson Chancery,
Lyle, 13 pages.



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download the full text of any state appellate court decision by accessing the
states web site by clicking here: http://www.tncourts.gov