TAM-BYTES

January 5, 2015
Vol. 18, No. 1
2015 TAM CLE CALENDAR

Webinars
The Tennessee Attorneys Trust Account Handbook: Ethical
Considerations and Key Provisions, 60-minute webinar presented by Sandy
Garrett, chief disciplinary counsel with the Board of Professional
Responsibility, on Tuesday, February 24, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of DUAL credit.
Where Family Law and International Issues Collide: Relocation and Child
Abduction Issues, 60-minute webinar presented by Rebecca McKelvey
Castaneda, with Stites & Harbison in Nashville, on Wednesday, February 25,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court adopts amendments to Tennessee Rules of Appellate
Procedure and Tennessee Rules of Criminal Procedure;
Workers Comp Panel affirms award of permanent disability benefits to
employee who sustained significant permanent impairment and disability
as result of respiratory and muscle problems after being exposed to
chemical fungicide, Balers Choice, at work on September 30, 2008;
Court of Appeals reverses trial courts grant of directed verdict to
defendant eye surgeon, based on plaintiffs failure to present evidence
establishing standard of care and causation, in health care liability action
alleging that defendants negligence in performing LASIK procedure
resulted in several eye injuries;
Court of Criminal Appeals, in affirming trial courts grant of defendants
motion to suppress evidence of his blood alcohol test on basis that
defendants Fourth Amendment rights were violated in drawing of his

blood, says natural metabolization of alcohol in bloodstream does not

create per se exigency justifying exception to Fourth Amendments
requirement for non-consensual blood testing in all drunk-driving cases;
and
Court of Criminal Appeals, in DUI case, says that because report to 911
from known citizen informant indicated reckless driving that placed other
motorists in danger, officer was not required to corroborate any details of
actual criminal activity before conducting investigatory stop.

SUPREME COURT
APPEAL & ERROR: Under amended TRAP 11(f), if intermediate appellate
court denies application for interlocutory appeal under TRAP 9 and Supreme
Court subsequently grants permission to appeal, appellants brief must be filed
within 30 days of filing of record in Supreme Court. These and other
amendments to Tennessee Rules of Appellate Procedure take effect 7/1/15 if
approved by General Assembly. In re Amendments to Tennessee Rules of
Appellate Procedure, 1/2/15, Nashville, 8 pages.
CRIMINAL PROCEDURE: Amended TRCrP 41(2) sets forth procedure for
requesting search warrant by electronic means. These and other amendments to
Tennessee Rules of Criminal Procedure take effect 7/1/15 if approved by
General Assembly. In re Amendments to Tennessee Rules of Criminal
Procedure, 1/2/15, Nashville, 9 pages.
PROFESSION OF LAW: In case in which attorney, who has been sanctioned
by Board of Professional Responsibility (Board) seven times since 1991, was
suspended from practice of law for 45 days after Board determined that attorney
failed to act diligently in his representation of client, Board did not act arbitrarily
or capriciously in finding that attorney violated duty of diligence when
attorneys failure to take any action in response to defendants safe harbor letter,
motion to dismiss, and motion for sanctions was neglectful, unprofessional, and
exposed his client to very real possibility of monetary sanctions; there is no
Sixth Amendment right to effective assistance of counsel in attorney disciplinary
proceeding. Mabry v. Board of Professional Responsibility, 12/30/14,
Knoxville, Lee, unanimous, 13 pages.
http://www.tncourts.gov/sites/default/files/mabrythomas.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee was exposed to
chemical fungicide, Balers Choice, at work on 9/30/08, employee sustained
significant permanent impairment and disability as result of respiratory and
muscle problems, Dr. Willers, pulmonary and critical care physician at
Vanderbilt University Medical Center, diagnosed Antisynthetase Syndrome
and opined that there was no connection between exposure to fumes of Balers
Choice, Dr. Flatt, employees personal physician, opined that employee suffered
from chemical pneumonitis consistent with chemical exposure, and Dr. Lang,
employees treating pulmonologist for period of time, opined that employee
developed pulmonary fibrosis as result of chemical exposure, evidence did not
preponderate against trial courts finding that employee had sustained
compensable injury as result of his exposure to Balers Choice when employee
had no medical history of pulmonary issues, he had no history of cigarette
smoking, there was no history of any breathing or lung-related illness prior to
being exposed to fumes from Balers Choice, and all reasonable doubts as to
causation of injury in case and whether injury arose out of employment should
be resolved in favor of employee. Peek v. Tri-Green Equipment LLC, 12/30/14,
Nashville, Summers, 10 pages.
http://www.tncourts.gov/sites/default/files/peek_v_trigreencorrec_opn.pdf

WORKERS COMPENSATION: In case in which employee was involved in

2011 motor vehicle accident in course of his employment, employer provided
medical treatment but denied that employee sustained permanent impairment or
disability, employer relied on testimony of physicians who opined that accident
did not cause any anatomical change or advancement of employees pre-existing
condition, and employer pointed to inconsistent effort given by employee during
Functional Capacity Evaluation, evidence did not preponderate against trial
courts finding that employee sustained permanent injury as result of accident
when there was no evidence that employee had any symptoms of neck or back
problems prior to his 12/11 accident, circumstances of accident were not in
dispute employee swerved his vehicle to avoid collision with deer, went over
embankment, and collided with several trees before coming to stop there was
abundant evidence that employee, thereafter, experienced significant and
persistent pain and stiffness in his neck and back, while there was basis to
question at least extent of those symptoms, there was no cause to question their
existence, and there is common sense connection between motor vehicle
accident and immediate onset of those symptoms. Seigmund v. Bellsouth
Telecommunications LLC, 12/30/14, Nashville, Bivins, 10 pages.
http://www.tncourts.gov/sites/default/files/seigmundcopnjo.pdf

WORKERS COMPENSATION: In case in which employee, feeder

driver for UPS, alleged that he injured his left shoulder on 5/18/11, and
employer agreed to provide medical treatment for injury under settlement for
2005 claim, evidence did not preponderate against trial courts finding that
employee sustained new compensable injury to his left shoulder when
testimony of doctor, who had extensive history with employee as patient, lends
itself to dual interpretations on subject of whether employee sustained new,
compensable injury or merely statistically predictable failure of his earlier
surgery some of sutures from prior procedure failed, tear increased in size,
and there was some deterioration of subscapularis tendon between 2005 and
2011; employees testimony that he considered arthritis to be cause of his
problems was accredited by trial court and provided reasonable explanation for
his failure to provide notice of injury at earlier time, and there was no evidence
that employers investigation of facts was compromised by delayed notice;
there is some justification for employers argument that meaning of doctors
testimony was that employee sustained increase of no more than1%
impairment as result of 2011 injury, but, in light of different methodologies
used, it is equally likely that rating provided by Sixth Edition, which
specifically addressed torn rotator cuff, is entirely separate from that provided
by Fifth Edition, which relied on anatomical changes caused by surgical
procedures associated with rotator cuff tear. Moran v. United Parcel Service
Inc., 12/26/14, Nashville, Summers, 11 pages.
http://www.tncourts.gov/sites/default/files/moran-ups_opn.pdf

WORKERS COMPENSATION: When funeral director sustained injuries to

his shoulder and back while assisting with carrying casket on 2/9/10, his injury
was accepted as compensable, he submitted letter of resignation to employer, he
later filed action seeking permanent disability benefits and reconsideration of
previous settlement, and trial court found that employee did not voluntarily
resign, granted petition for reconsideration, and awarded benefits for second
injury in excess of cap, evidence did not preponderate against trial courts
finding that employee did not voluntarily resign and that he was unable to return
to work as result of his injury when trial court accepted employees statement
that he did not actually intend to resign at any time and that he explained that to
employers vice president and advised him of work injury. Collier v. McEvoy
Funeral Home Inc., 12/29/14, Jackson, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/colliergaryopn.pdf

WORKERS COMPENSATION: In case in which employee sustained low

back injury while delivering packages in course of her employment, trial court
did not abuse discretion in adopting diagnosis and impairment rating of Dr. Gaw
who opined that employee suffered from two separate nerve injuries, found

that employee had resolved radiculopathy, which he stated was result of lumbar
disc protrusion or hernia at L4-5 level, and dysfunction of lateral femoral
cutaneous nerve, and assigned 7% impairment rating based on that diagnosis and
Sixth Edition of AMA Guides over Dr. Hopp who opined that employee had
lumbar strain with referred pain in her right leg and assigned 2% impairment
rating based on that diagnosis and Sixth Edition of AMA Guides. Payne v.
United Parcel Service Inc., 12/30/14, Nashville, Bivins, 11 pages.
https://www.tba.org/sites/default/files/paynev_12302104.pdf

COURT OF APPEALS
TORTS: Trial court erred in granting directed verdict in favor of defendant
eye surgeon in health care liability action in which plaintiff alleged that
defendants negligence in performing LASIK procedure resulted in several eye
injuries; testimony of plaintiffs medical expert was sufficient to establish
applicable standard of care under TCA 29-26-115(a) when expert testified that
he was familiar with standard of care in Memphis for eye surgeons and
described appropriate standard of care during plaintiffs LASIK procedure by
discussing technology used to cut flap, assessment of flap, and treatment of
irregular flap, experts use of phrases during surgery or in [plaintiffs]
case, although less than ideal, would not prevent jury from determining time
period involved, in response to question, Do you have an opinion as to
whether or not it was a deviation from or a violation of the accepted standard
of care for [defendant] to go forward with LASIK procedure and fail to put the
flap back down in [plaintiffs] case in view of your findings of an irregular flap
in the left eye?, expert responded, Yes, it was a deviation of the standard of
care, and this testimony can refer to no other standard of care than that
applicable on 5/9/03, date of plaintiffs surgery; most favorable interpretation
of experts testimony was that he concluded plaintiffs eye injuries were direct
result of defendants negligence, so his testimony was unqualified by estimates
of probability, and, experts testimony, weak or strong, at least created jury
question on causation under TCA 29-26-115(a)(3). Dickson v. Kriger,
12/30/14, WS, McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/dicksonleonopn_0.pdf

TORTS: When plaintiff was injured while playing softball in charity

tournament at Marvin Rich Field in Bean Station ball hit by batter bounced off
small strip of rubber on pitchers mound and hit plaintiff, who was pitcher
plaintiff filed suit against City of Bean Station, among others, alleging that city
negligently failed to properly maintain pitchers mound and field as whole, and
city argued that governmental immunity was not removed by Governmental Tort

Liability Act, which removes immunity for injury caused by dangerous or

defective condition of structure or improvement owned and controlled by
governmental entity, trial court properly granted city summary judgment when
city demonstrated that plaintiff could not establish essential element of his
premises liability claim, i.e., that city owned and controlled property or public
improvement alleged to be dangerous or defective. Turner v. City of Bean
Station, 12/30/14, ES, Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/turner_v_bean.pdf

COMMERCIAL LAW: When beneficiaries of trust filed suit against trustee

alleging trustee self-dealing arising from transaction in which trustee and his
wife purchased certain real property from trust as tenants by entirety,
beneficiaries sought to set aside portion of sale, trustee filed motion to compel
arbitration pursuant to arbitration clause in trust agreement, and beneficiaries
opposed motion, arguing that they could not be compelled to arbitrate their
claims against trustees wife, trial court did not err in denying motion to compel
arbitration; because trustee and his wife purchased real estate from trust as
tenants by entirety, wife is necessary party to any suit seeking to encumber her
interest in it, and only parties contractually bound by trust agreements
arbitration clause were trustee and beneficiaries. Diggs v. Lingo, 12/30/14, WS,
Gibson, 7 pages.
http://www.tncourts.gov/sites/default/files/diggsgeorgeernestopn.pdf

COMMERCIAL LAW: In breach of contract and promissory estoppel action

in which plaintiff filed suit for failure to fulfill oral modification of leases for
several pieces of earthmoving equipment, trial court did not err in finding that
plaintiff was merchant under TCA 47-2-104(1), as matter of law, when he
failed to present sufficient evidence to create question of fact for jury regarding
his status as merchant. Thomas Energy Corp. v. Caterpillar Financial Services
Corp., 12/26/14, ES, McClarty, 14 pages.
http://www.tncourts.gov/sites/default/files/caterpillaropn.pdf

COMMERCIAL LAW: In unlawful detainer action in which trial court

granted plaintiff loan servicing company summary judgment, there was no
genuine dispute that plaintiff was party entitled to enforce promissory note
when plaintiff began servicing loan in 2008 after plaintiff obtained possession
of collateral file and when plaintiff was not only transferred promissory note
but was also later assigned deed of trust by MERS, lenders beneficiary under
deed of trust; fact that plaintiff never submitted original promissory note is not
sufficient to create genuine dispute of material fact when defendants waived
their right of presentment. Aurora Loan Services LLC v. Woody, 12/30/14,
WS, Stafford, 23 pages.
http://www.tncourts.gov/sites/default/files/woodyyopn.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of

mothers parental rights on ground that mother committed severe child abuse by
failing to protect child (Jaden) from father when there was no evidence that
father had ever exhibited violence toward any child prior to 8/15/13 incident
with Jaden, and mother cannot be charged with knowledge that father would
harm Jaden simply because he was violent toward her and his ex-wife; evidence
was sufficient to terminate mothers rights to Jaden on ground of abandonment
of child by wanton disregard when mothers refusal to show concern for Jadens
physical health, specifically his nutritional health, exhibited broader pattern of
conduct that renders the parent unfit or poses a risk of substantial harm to the
welfare of the child. In re Jaden W., 12/26/14, ES, Armstrong, 23 pages.
http://www.tncourts.gov/sites/default/files/jaden.pdf

FAMILY LAW: In case in which child was born to unwed couple in 2005, by
order entered on 11/21/05, juvenile court designated mother as primary
residential parent and set parties parenting time, in 2008, parties reconciled, and
fathers child support obligation was terminated because parties were living
together, by 2011, parties were no longer living together, on 1/14/11, juvenile
court entered agreed order setting child support and granting father reasonable
visitation rights with child, in 9/11, father filed petition to modify custody,
claiming there had been material change in circumstances warranting change in
custody, and juvenile court denied fathers petition, finding there had been no
material change in circumstance since 1/14/11 order sufficient to warrant change
in childs primary residential parent, because 1/14/11 order was not final order
of custody no petition to modify custody or designation of primary residential
parent was filed prior to entry of 1/11 order, rather 1/11 order was precipitated
by petition to set support filed by State of Tennessee, which acted because
mother was receiving or had applied to receive Title IV-D services under Social
Security Act juvenile court applied incorrect legal standard and failed to
comply with TRCP 52.01; juvenile courts judgment, which denied fathers
request to modify custody but decreased fathers parenting time and increased
his child support obligation, is vacated, and case is remanded for further
proceedings. In re Teven A., 12/29/14, MS, McBrayer, 9 pages.
http://www.tncourts.gov/sites/default/files/inretevena.opn_.pdf

CONSTITUTIONAL LAW: In case in which City of Memphis (City) police

department was investigating business suspected of selling illegal inhalants,
business owner was arrested and charged with criminal sale of inhalants, police
seized bank accounts belonging to owner and two corporations related to
business and instituted forfeiture proceedings regarding funds in those accounts,
and bank account owner and two corporations (plaintiffs) filed suit against City

and multiple police officers seeking damages pursuant to 42 USC 1983 and 42
USC 1988, trial court properly granted Citys motion to dismiss for failure to
state claim; under 42 USC 1983, municipality cannot be held liable solely under
principles of respondeat superior for constitutional torts committed by its
employees and agents; to hold city accountable for actions of employee acting
under color of state law who violates persons constitutional rights, plaintiff
must prove that city policy or policy of inaction was moving force behind
violation; while plaintiffs complaint includes many of buzz words applicable
in 42 USC 1983 actions such as deliberate indifference and moving force
complaint contains no specific factual allegations regarding city policy/custom
or policy of inaction with respect to unlawful seizures or deprivation of
property/unlawful retention of property all of allegations regarding policy
relate to disproportionate forfeiture, selective enforcement and selective
prosecution. Hill v. City of Memphis, 12/30/14, WS, Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/dietrichhillopn.pdf

CIVIL PROCEDURE: When plaintiff filed suit to recover damages for injuries
allegedly suffered in course of his arrest, trial court granted motion to dismiss
for failure to state claim filed on behalf of City of Portland and police chief and
granted summary judgment to police officers who participated in plaintiffs
arrest, and plaintiff acknowledged that claims against city, police chief, and two
officers should be dismissed, trial courts order granting summary judgment to
remaining officer is vacated when order did not state legal ground for granting
motion or make findings of fact relative thereto. Eidson v. City of Portland,
12/29/14, MS, Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/eidsong.correcopn.pdf

GOVERNMENT: When Claiborne County Board of Education voted to

terminate petitioners position as Director of Schools two years earlier than
employment term set forth in parties contract, board and petitioner entered into
another contract (modified contract) whereby petitioner agreed to work as Safety
Coordinator for five months and be compensated in amount equal to amount he
would have been paid had prior contract not been terminated, modified contract
resulted in salary increase of nearly $40,000 for each of five months individual
was employed as Safety Coordinator, modified contract provided that petitioner
would be paid whether he performed any work or not, employee agreed to waive
and release any claims he might have against county, when petitioner applied for
retirement benefits, Tennessee Consolidated Retirement System (TCRS) did not
treat nearly $40,000 increase in compensation as earnable compensation
because additional compensation was not for services rendered, as required by
TCA 8-34-101(14)(A), and administrative law judge (ALJ) ruled in favor of
TCRS, trial court properly applied standard of review set forth in Tennessees

Uniform Administrative Procedures Act when it affirmed ALJs decision to

grant TCRS summary judgment. Shoffner v. Tennessee Consolidated
Retirement System, 12/29/14, MS, Bennett, 11 pages.
http://www.tncourts.gov/sites/default/files/shoffnerec.e.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was indicted on two
counts of DUI, two counts of fourth offense DUI, evading arrest, resisting arrest,
and driving on revoked license, trial judge properly granted defendants motion
to suppress evidence of his blood alcohol content test on basis that defendants
Fourth Amendment rights were violated in drawing of his blood; given that
defendant refused law enforcements request to submit to blood test to determine
his blood alcohol content, and his blood was taken without warrant and over his
objections, and defendant did not implicitly consent to test by driving on roads
in Tennessee, no exigent circumstances justified warrantless search; natural
metabolization of alcohol in bloodstream does not create per se exigency that
justifies exception to Fourth Amendments requirement for non-consensual
blood testing in all drunk-driving cases. State v. Turner, 12/30/14, Knoxville,
McMullen, 11 pages.
http://www.tncourts.gov/sites/default/files/turnerboyceopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of

DUI, driving while blood alcohol was in excess of legal limit, and failing to
maintain his proper lane of traffic, trial judge properly denied defendants
motion to suppress evidence obtained as result of seizure of his vehicle when
officer had reasonable suspicion to conduct brief investigatory stop of
defendants vehicle based on information received from known citizen informant
informant called 911 to report vehicle being driven on wrong side of road;
because report indicated reckless driving that placed other motorists in danger
specifically, driving on wrong side of road officer was not required to
corroborate any details of actual criminal activity. State v. Van Camp, 12/29/14,
Knoxville, Easter, 7 pages.
http://www.tncourts.gov/sites/default/files/vancampchristianopn.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to two

counts of vehicular homicide and was sentenced to concurrent terms of four
years at 30%, trial judge did not abuse discretion in basing his decision denying
defendant judicial diversion on charges, i.e., two traffic offenses, listed as
pending in presentence report but that were actually disposed of prior to
sentencing hearing, on presence of marijuana in defendants system even though
marijuana use was not element of vehicular manslaughter as charged in case, and

on need to deter others from driving irresponsibility. State v. Scruggs, 12/30/14,

Jackson, Holloway, 9 pages.
http://www.tncourts.gov/sites/default/files/scruggslashaopn.pdf

CRIMINAL SENTENCING: In case in which defendant filed TRCrP 36.1

motion to correct illegal sentences, which were imposed over 28 years ago,
arguing that sentences were contrary to statute in that he was sentenced to
concurrent rather than consecutive sentences as statutorily required, and trial court
found it lacked jurisdiction because sentences had already expired and because
trial court could not determine that sentence[s] are illegal, because of broadness
of TRCrP 36.1, trial court had jurisdiction to consider motion, and defendant
stated colorable claim for relief from illegal sentence; even though almost 30
years have passed since defendant was sentenced, there is no proof in record that
his sentences have expired, and defendant is not required to provide such proof in
his filing defendant was merely required to present colorable claim. State v.
Talley, 12/26/14, Knoxville, Easter, concurrence by Glenn, 7 pages.
http://www.tncourts.gov/sites/default/files/talleyjohnopn.pdf
http://www.tncourts.gov/sites/default/files/talleyjohncon.pdf

SIXTH CIRCUIT COURT OF APPEALS

APPEAL & ERROR: In suit in which plaintiff alleged that dual-majority vote
requirement Tenn. Const. Art. XI, Sec. 9 and its enabling legislation permit
consolidation of city and county if majority of voters in principal city and
majority of county voters outside principal city vote in favor of consolidation
violates Equal Protection Clause of Fourteenth Amendment to U.S. Constitution
and Section 2 of Voting Rights Act, appeal of district courts grant of summary
judgment to defendants is dismissed as moot when referendum for consolidation
of City of Memphis and Shelby County did not pass and would not have passed
even if there had been no dual-majority vote requirement. Tigrett v. Cooper,
12/30/14, Cole, 6 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0950n-06.pdf

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