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Whether attorney for defendant medical entity may confer ex parte with non-party treating physicians who are employed by defendant medical entity, amount of time parent must serve to trigger termination of parental rights on ground of incarceration under sentence of 10 years or more, sufficiency of evidence to convict defendant of conspiracy to possess cocaine with intent to sell or deliver or maintain dwelling where controlled substances are used or sold, and more from Tennessee’s appellate courts …
Whether attorney for defendant medical entity may confer ex parte with non-party treating physicians who are employed by defendant medical entity, amount of time parent must serve to trigger termination of parental rights on ground of incarceration under sentence of 10 years or more, sufficiency of evidence to convict defendant of conspiracy to possess cocaine with intent to sell or deliver or maintain dwelling where controlled substances are used or sold, and more from Tennessee’s appellate courts …
Whether attorney for defendant medical entity may confer ex parte with non-party treating physicians who are employed by defendant medical entity, amount of time parent must serve to trigger termination of parental rights on ground of incarceration under sentence of 10 years or more, sufficiency of evidence to convict defendant of conspiracy to possess cocaine with intent to sell or deliver or maintain dwelling where controlled substances are used or sold, and more from Tennessee’s appellate courts …
Vol. 17, No. 30 2014 TAM CLE CALENDAR Webinars Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury Trials, 60-minute webinar presented by William L. Pfeifer, Alabama appellate attorney, tomorrow, 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.
False Claims Act Recovery and Protection for Whistleblowers, 60-minute webinar presented by Larry Golston, Montgomery attorney, on Wednesday, August 27, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
On-Site Events 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
Probate & Estate Planning Conference for Tennessee Attorneys Thursday & Friday, October 23-24 Nashville School of Law
TOPI CS: Spend 2 days with some of the states top estate planning and probate practitioners offering tips on advanced estate planning strategies, drafting QTIPs, GRATs, and QPRTs, will drafting in 2014, the intersection of family law and estate planning issues, use of Medicaid-compliant annuities, hot topics in probate litigation, practicing in probate court, and updates on issues related to trusts, estate planning, and probate. Also, hear about ethical issues arising when crafting a healthcare power of attorney, a living will, or an advance care plan and ethical issues arising in estate administration, such as client confidentiality, billing inquiries, and other difficult-to-resolve dilemmas.
FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell, Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank of America Private Wealth Management; Harlan Dodson, Dodson, Parker, Behm & Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell, Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L. Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley, Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright, CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.
****************************************************************** Law Conference for Tennessee Practitioners Thursday & Friday, November 13-14 Marriott Franklin/Cool Springs
TOPI CS: Overview of the changes to the workers compensation law for injuries occurring on or after July 1, 2014, as well as how claims will be decided by the claims courts; compliance issues for attorneys subject to HIPAA; latest developments in medical malpractice, including how the appellate courts have ruled on compliance with the pre-suit notice and certificate of good faith requirements; how to embrace your inner digital lawyer and get up to date on issues such as mobile computing, file management, and the risks of going mobile; what every litigator needs to know about business entity laws in Tennessee; latest developments in the family law area; checklist for provisions to be included in a will today; recent changes to the rules on computer calls; how to use a little-known VA benefit to aid your clients; overview of the administrative process in Tennessee from an experienced chancellor; ins and outs of standards of review and the scope of the appellate practice from an appellate court judge; tips from a chancellor on pretrial motion practice; an insiders perspective from the Chief Disciplinary Counsel on the Boards recent developments; how to avoid e- discovery ethical pitfalls and how to handle social media, e-mail, video, and other electronically stored information; and insight from a former trial judge and now special judge on displaying professionalism in the practice of law.
FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy, Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional Responsibility; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Kevin Levine, DeSalvo & Levine PLLC; Helen S. Rogers, Rogers, Kamm & Shea; Lucas R. Smith, Bass, Berry & Sims PLC; Richard Spore, Bass, Berry & Sims PLC; Elizabeth Warren, Bass, Berry & Sims PLC; and John Watts, Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.
IN THIS WEEKS TAM-Bytes
Court of Appeals, in healthcare liability action, holds attorney for defendant medical entity may confer ex parte with non-party treating physicians who are employed by defendant medical entity; Court of Appeals says, with regard to termination of parental rights on ground of parents incarceration under sentence of 10 years or more when child is under eight years of age, if parent is sentenced even to just one day of confinement and then probation for 10 or more years, and child is under eight years of age, this statutory ground for termination is met; and Court of Criminal Appeals reverses conviction for conspiracy to possess more than 26 grams of cocaine with intent to sell or deliver or maintaining dwelling where controlled substances are used or sold when there was no proof that defendant maintained dwelling where he and co-conspirator sold cocaine, alleged overt act.
COURT OF APPEALS
TORTS: In healthcare liability action, trial court erred in holding that attorneys for defendant medical entity are barred from conferring ex parte with treating physicians employed by defendant medical entity who are not named as defendants in suit; Alsip v. Johnson City Medical Center, 197 SW3d 722 (Tenn. 2006), does not bar medical entitys attorneys from communicating ex parte with physicians employed by medical entity about physician employees medical treatment of plaintiffs decedent. Hall v. Crenshaw, 7/18/14, WS, Kirby, 12 pages. http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf
TORTS: In case in which plaintiffs car was repossessed, plaintiff paid amount owed but never received car, and plaintiff recovered judgment for conversion, trial court erred in awarding plaintiff attorney fees first, as special damages, and then, in amended order, as punitive damages; attorney fees are meant to be compensatory, and hence, it is inappropriate to award attorney fees as punitive damages; American Rule applies, and there is no authority to award attorney fees in this conversion case. Bridgefourth v. Santander Consumer USA I nc., 7/21/14, WS, Bennett, 3 pages. http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf
COMMERCIAL LAW: In dispute between fuel supplier (Jerrys Oil) and retail service station (Handy Peddler), which was owned and operated by Hanna Nazi, John Nazi, and/or Ben Nazi, in which Jerrys Oil filed suit for nonpayment on outstanding fuel invoices pursuant to Fuel Supply Agreement, John Nazis decision to sign different contracts pertinent to this transaction in different ways created ambiguity as to proprietor of Handy Peddler, and hence, trial court was entitled to consider other evidence to determine whether John Nazi was holding himself out as Handy Peddlers owner; trial court simply determined that John Nazi could not be liable because he was no longer involved with Handy Peddler at time breaches occurred, which was improper basis for involuntary dismissal; in light of sharply disputed issues of facts as to whether John Nazi was acting as owner/proprietor of Handy Peddler, credibility of witnesses is first to be determined by trial court; judgment is vacated, and case is remanded for reconsideration. Nazi v. Jerrys Oil Co., 7/18/14, WS, Stafford, 24 pages. http://www.tncourts.gov/sites/default/files/nazihopn.pdf
FAMILY LAW: Evidence did not preponderate against trial courts termination of fathers parental rights to his child on ground of abandonment by exhibiting wanton disregard for welfare of child when father was aware that mother was pregnant after he had sex with her, and while father was concerned enough to question if he was childs father, he made no further inquiries as to his paternity after mother openly identified another man as childs father, instead choosing to continue in his pattern of destructive behavior, including several stints in jail as result of various criminal activity, which exhibited wanton disregard for his welfare as well as welfare of child; parents incarceration, under this ground of abandonment, serves only as triggering mechanism that allows court to take closer look at childs situation to determine whether parental behavior that resulted in incarceration is part of broader pattern of conduct that renders parent unfit or poses risk of substantial harm to welfare of child, and trial court may consider any relevant conduct that occurred prior to incarceration and is not limited to reviewing four months immediately preceding incarceration; with regard to termination of parental rights on ground of parents incarceration under sentence of 10 years or more when child is under eight years of age, if parent is sentenced even to just one day of confinement and then probation for 10 or more years, and child is under eight years of age, this statutory ground for termination is met. I n re Chandler M., 7/21/14, ES at Nashville, McClarty, partial dissent by Swiney, 16 pages. http://www.tncourts.gov/sites/default/files/inrechandlerm.opn_.pdf http://www.tncourts.gov/sites/default/files/inrechandlerm.opndissenting.pdf
FAMILY LAW: In case in which parties married, divorced, remarried (staying remarried for few years), and then divorced again, on both divorces, parties entered into marital dissolution agreement (MDA), second MDA awarded wife 50% of all of husbands military retirement pay, without reference to duration of parties first marriage, second marriage, or both marriages combined, trial court did not abuse discretion in holding that wifes award of benefits was based on combined duration of both marriages, i.e., 20 years. Lambert v. Lambert, 7/18/14, WS at Nashville, Kirby, 12 pages. http://www.tncourts.gov/sites/default/files/lamberto.n.k.opn_.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL LAW: Evidence was not sufficient to convict defendant of criminal conspiracy to possess more than 26 grams of cocaine with intent to sell or deliver or maintaining dwelling where controlled substances are used or sold when there was no proof that defendant maintained dwelling where he and Gardner sold cocaine, alleged overt act, when defendants name was not on lease for home, multiple witnesses testified that defendant lived with Stanley in apartment, there was no proof that defendant contributed money to pay rent or other expenses, provided furnishings, or participated in upkeep of house, and there was no proof that defendant continuously exercised some authority or control over the [house] for an appreciable period of time; defendants murder convictions, as well as his conviction for especially aggravated robbery are affirmed. State v. Massey, 7/23/14, Knoxville, Bivins, 54 pages. http://www.tncourts.gov/sites/default/files/masseyjopn.pdf
CRIMINAL PROCEDURE: In case in which defendant was determined to be indigent at his arraignment and at time his motion for new trial was denied, trial court did not abuse discretion in ordering defendant to pay court costs when decision of whether to waive court costs rests within discretion of court it is not mandatory that court waive costs upon finding of indigency. State v. Ryan, 7/22/14, Knoxville, Woodall, 9 pages. http://www.tncourts.gov/sites/default/files/ryanjamesjosephopn.pdf
PUBLIC CHAPTER
CRIMINAL SENTENCING: Judge may, as condition of probation, order second or third DUI offender to participate in substance abuse treatment program. 2014 PC 902, effective 7/1/14, 5 pages. http://www.tn.gov/sos/acts/108/pub/pc0902.pdf
ATTORNEY GENERAL OPINION
CRIMINAL LAW: Intentional, knowing, or reckless conduct will establish culpable mental state for second degree murder under TCA 39-13-210(a)(2), but, as practical matter, mental state element for second degree murder resulting from unlawful distribution of any Schedule I or Schedule II drug, when drug is proximate cause of death of user, is recklessness. Attorney General Opinion 14- 72, 7/23/14, 3 pages. http://www.tn.gov/attorneygeneral/op/2014/op14-72.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