TAM-BYTES

December 7, 2015
Vol. 18, No. 49
IN THIS WEEKS TAM-Bytes
Supreme Court defines colorable claim and illegal sentence for
purposes of TRCrP 36.1 motion to correct illegal sentence;
Supreme Court finds that TRCrP 36.1 does not expand scope of relief
available for illegal sentence claims and, as such, does not authorize
correction of expired illegal sentences;
Supreme Court upholds Board of Law Examiners denial of
application, filed by resident of South Korea who received his law
degree from Handong International Law School in Korea, to sit for
Tennessee bar examination based on applicants failure to comply
with requirements of Supreme Court Rule 7;
Supreme Court amends provisions of Code of Judicial Conduct
regarding judges and judicial candidates election campaign
conduct;
Court of Appeals rules plaintiff in healthcare liability action failed to
substantially comply with TCA 29-26-121(a)(1)(E) when plaintiff
left blank portion of authorization form describing type and amount
of information and therefore failed to provide defendant with proper
authorization to use decedents medical records to mount defense;
Court of Appeals rules TCA 29-20-206 permits municipalities and
counties to raise quasi-judicial immunity as substantive tort law
defense in Governmental Tort Liability Act cases;
Court of Appeals rules father was entitled to credit against his child
support obligation under equitable considerations rule when father
deposited money into mothers bank account when she asked for it,
father did not exercise any control over money after he gave it to
mother, and as result of fathers payments, mother was able to
provide for couples child;
Court of Appeals affirms trial courts decision to invalidate parties
antenuptial agreement based on fact that wife could not speak or read
English and fact that wife was not represented by counsel at time she
signed agreement either day before or day of wedding;
Court of Criminal Appeals rules defendant unequivocally invoked his
right to counsel after his initial Miranda waiver by stating I will talk
to you, but I want to run it by an attorney first, and therefore,

detective was constitutionally obligated to cease all questioning of

defendant immediately; and
Court of Criminal Appeals says fact that notice of DUI roadblock
was provided to news media but not to public within two weeks of
date of roadblock and fact that highway patrol failed to provide
specific date for roadblock, choosing to provide only date range, did
not render roadblock deficient.

SUPREME COURT
CRIMINAL SENTENCING: For purposes of TRCrP 36.1, colorable
claim means claim that, if taken as true and viewed in light most favorable
to moving party, would entitle moving party to relief under TRCrP 36.1; at
minimum, any motion filed under TRCrP 36.1 must state with particularity
factual allegations on which claim for relief from illegal sentence is based;
moving party may support motion with affidavits; when determining
whether TRCrP 36.1 motion sufficiently states colorable claim, trial court
may consult record of proceeding from which allegedly illegal sentence
emanated; definition of illegal sentence in TRCrP 36.1 is coextensive
with, and not broader than, definition of term in habeas corpus context;
appellants allegation in TRCrP 36.1 motion that his five-year sentence is
illegal because trial court increased sentence above presumptive statutory
minimum, but failed to find any enhancement factors to support increase,
falls squarely within category of appealable errors, which does not render
sentences illegal. State v. Wooden, 12/2/15, Knoxville, Clark, 4-0, 13 pages.
http://www.tncourts.gov/sites/default/files/woodenj.opn_.pdf

CRIMINAL SENTENCING: TRCrP 36.1 does not expand scope of relief

available for illegal sentence claims and, therefore, does not authorize
correction of expired illegal sentences; TRCrP 36.1 motion alleging that
trial court failed to award pretrial jail credits is insufficient to state
colorable claim for relief from illegal sentence; when trial court fails, by
reason of clerical mistake, oversight, or omission, to record defendants
sentence accurately on judgment, trial court maintains power to correct
clerical error under TRCrP 36, and correcting clerical errors so that record
accurately reflects sentence imposed does not amount to granting relief
from expired illegal sentences. State v. Brown, 12/2/15, Knoxville, Clark,
4-0, 15 pages.
http://www.tncourts.gov/sites/default/files/browna_opn.pdf

PROFESSION OF LAW: Board of Law Examiners properly denied

application, filed by resident of South Korea who received his law degree

from Handong International Law School in Korea, to sit for Tennessee bar
examination based on applicants failure to comply with requirements of
Supreme Court Rule 7, section 7.01; words [i]n addition, as used in
Supreme Court Rule 7, section 7.01, mean that minimum credit hours
required by that section must be earned over and above credit hours
required for obtaining law degree from applicants foreign law school;
words in residence, as used in section 7.01, mean physically in
residence at ABA-approved law school. Chong v. Tennessee Board of
Law Examiners, 12/4/15, Nashville, Lee, 4-0, 6 pages.
http://www.tncourts.gov/sites/default/files/chongd.opn_.pdf

PROFESSION OF LAW: Tennessee attorney disciplinary process

comports with due process and does not improperly combine investigatory
and adjudicatory functions; use of preponderance-of-evidence standard in
attorney disciplinary proceedings satisfies attorneys right to procedural due
process; imposition of six-month suspension, with 30 days to be served on
active suspension and remaining five months on probation, on attorney by
Board of Professional Responsibility was neither arbitrary nor capricious
when attorney was found to have violated several ethical rules in his
handling of three separate criminal appeals. Walwyn v. Board of
Professional Responsibility, 12/3/15, Nashville, Clark, 4-0, 26 pages.
http://www.tncourts.gov/sites/default/files/walwynpj_opn.pdf

PROFESSION OF LAW: Provisions of Code of Judicial Conduct are

amended to permit judges and judicial candidates to engage in certain
activities, such as endorsing or opposing judges or judicial candidates in
partisan, nonpartisan, or retention election for judicial office, seeking,
accepting, or using endorsements from any person or organization, and
grouping themselves into slates or other alliances to conduct their
campaigns more effectively. In re Proposed Amendments to Supreme
Court Rule 10 (Code of Judicial Conduct), 12/2/15, Nashville, 12 pages.
http://www.tncourts.gov/sites/default/files/docs/rule_10_amendments_filed_order_12-02-15_1.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence preponderated against trial
courts granting of motion for summary judgment on statute of limitation in
workers compensation case as it appears that employee provided sufficient
evidence to show that she filed her claim within one year of date medical
services were last provided; there are also genuine issues of fact as to
equitable defenses. Bode v. Hartford Insurance Co., 11/25/15, Knoxville,
Stevens, 9 pages.
http://www.tncourts.gov/sites/default/files/bode_opinion.pdf

COURT OF APPEALS
TORTS: Trial court properly granted summary judgment to defendant in
case in which plaintiff slipped on orange liquid on floor of defendants
store; defendants motion demonstrates that plaintiffs evidence was not
sufficient to show essential element of her premises liability claim, i.e.,
either that defendant created dangerous condition or that dangerous
condition existed for so long that defendant should have known about it,
when plaintiff offered no evidence to show how long orange liquid had
been on floor or any other evidence regarding how liquid came to be on
floor and when defendant offered affidavit establishing that none of
defendants employees created allegedly dangerous condition. Patterson v.
Wal-Mart Stores East L.P., 11/30/15, WS, Stafford, 8 pages.
http://www.tncourts.gov/sites/default/files/pattersonteresaopn.pdf

TORTS: In healthcare liability action, plaintiff failed to substantially

comply with TCA 29-26-121(a)(2)(E) when plaintiff left blank portion of
authorization form describing type and amount of information to be used
and therefore failed to provide defendant with proper authorization to use
decedents medical records to mount defense; dismissal of suit with
prejudice is affirmed. Bray v. Khuri, 12/3/15, WS, Gibson, 7 pages.
http://www.tncourts.gov/sites/default/files/braydeborahopn.pdf

TORTS: Trial court did not err in granting states motion to dismiss
healthcare liability claim when plaintiff contended that he complied with
statutory requirement for filing certificate of good faith by consulting with
qualified physicians concerning incidents that form basis of his negligence
claim; because plaintiff failed to file certificate of good faith, fact that he
filed other documentation concerning his medical treatment is immaterial.
McKinnie v. State, 12/3/15, WS, Armstrong, 6 pages.
http://www.tncourts.gov/sites/default/files/mckinniecoreyopn.pdf

TORTS: When plaintiff consented, as part of plea agreement, to comply

with requirements of Knox County Pretrial Services Office during six-month
probation, plaintiff was required to wear Secure Continuous Remote Alcohol
Monitoring (SCRAM) unit to track his alcohol consumption, Pretrial
Services, department of Knox County Sheriffs Office and agent of Knox
County, installed and monitored device, and plaintiff filed suit alleging that
agents of Pretrial Services were negligent in installation of, and their refusal
to adjust SCRAM unit, exacerbating plaintiffs diabetic condition, trial court
erred in holding that Knox County was not entitled to raise defense of quasijudicial immunity; TCA 29-20-206 permits municipalities and counties to

raise quasi-judicial immunity as substantive tort law defense in

Governmental Tort Liability Act cases; injuries alleged by plaintiff resulted
from officers acts and omissions in carrying out court order, and hence,
officers, as individuals, would be protected by quasi-judicial immunity;
Knox County is able to raise this same defense under TCA 29-20-206, which
permits it to raise same defenses to tort claim that private person could raise.
Davis v. Knox County, 11/30/15, ES, Susano, 10 pages.
http://www.tncourts.gov/sites/default/files/davis_v._knox_county.pdf

FAMILY LAW: In case in which parties divorced in 4/10, parenting plan

was entered into providing that parties would share equal parenting time
with child, in 3/12, father notified mother that he intended to relocate with
child to Tucson, Arizona, for employment opportunity and filed petition
requesting to modify parenting plan and relocate, and mother filed petition
in opposition to fathers proposed move, evidence did not preponderate
against trial courts determination that fathers move served no reasonable
purpose and was not in best interest of child when there was no proof that
father has better job opportunities, greater salary opportunities, or career
advancement opportunities in Tucson area, there was no proof with regard
to fathers comparable job opportunities in Middle Tennessee or Southern
Kentucky area because father had not made any inquiries or pursued such
opportunities, and trial court implicitly found that support system available
to father in Tennessee was entitled to greater weight in context of
reasonable purpose inquiry than that in Arizona. Aragon v. Aragon,
11/30/15, MS, Dinkins, dissent by McBrayer, 19 pages.
http://www.tncourts.gov/sites/default/files/aragon.cassidy.opn_.pdf

FAMILY LAW: Evidence preponderated against termination of fathers

parental rights to his daughter on ground of abandonment by willful failure
to support when there was no evidence presented regarding fathers income,
expenses, assets, debts, or ability to pay child support during four-month
period before father was incarcerated; trial court erred in relying on
evidence presented at ex parte hearing when deciding to terminate fathers
parental rights to his child; trial courts judgment is reversed, and
termination petition is dismissed with prejudice. In re C.J.A.H., 11/30/15,
ES, Susano, 30 pages.
http://www.tncourts.gov/sites/default/files/in_re_cloee_jah.pdf

FAMILY LAW: Tennessee recognizes two doctrines, i.e., necessaries rule

and equitable considerations rule, under which obligor parents may receive
credit on their child support obligations for voluntary payments that do not
comply with court order; fathers payments fall under equitable
considerations rule when father deposited money into mothers bank
account when she asked for it, father did not exercise any control over

money after he gave it to mother, and as result of fathers payments, mother

was able to provide for couples child; father is entitled to credit against his
child support obligation for $73,335, amount of payments mother received
from father. In re Andrea R., 11/30/15, MS, Clement, 18 pages.
http://www.tncourts.gov/sites/default/files/inreandrear.opn_.pdf

FAMILY LAW: In case in which parties divorced in 2012, later that same
year, fathers employer notified him that his high-paying sales job would be
eliminated, due to his unemployment, father filed petition to modify his
alimony and child support obligations, and trial court concluded there was
material change in circumstances and reduced fathers monthly alimony and
child support obligations, trial court properly measured change in
circumstance from date of final divorce decree; in modifying fathers child
support obligation, trial court erred by imputing income to both parents
trial court found father had ability to earn $16,500 per month, while mother
had ability to earn $2,000 per month when trial court made no finding that
either parent was willfully and/or voluntarily underemployed or
unemployed, and evidence does not support amounts imputed to each
parent by trial court. Cook v. Iverson, 11/30/15, MS, McBrayer, 11 pages.
http://www.tncourts.gov/sites/default/files/cookiiverson.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

decision to invalidate parties antenuptial agreement based on fact that wife
could not read agreement she could not speak or read English and fact
that wife was not represented by counsel at time she signed agreement
either day before or day of wedding ceremony. Hollar v. Hollar, 11/30/15,
MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/hollars._opn.pdf

APPEAL & ERROR: When appellants filed motion with trial court
pursuant to TRCP 60.01, seeking alteration of filing date on notice of
appeal, absent remand from appellate court, trial court was without
jurisdiction to act on TRCP 60.01 motion while appeal was pending. Burke
v. Huntsville NH Operations LLC, 11/30/15, ES, Frierson, 13 pages.
http://www.tncourts.gov/sites/default/files/burke.opn_.final_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted of
incest, because defendants confession was obtained in violation of his Fifth
Amendment right to counsel, defendants conviction is reversed, and case is
remanded for new trial; because defendant unequivocally invoked his right
to counsel after his initial Miranda waiver after being confronted with

allegations that he forced his half-sister to perform oral sex on him,

defendant statement to detective that I will talk to you, but I want to run it
by an attorney first clearly communicated defendants desire to consult
with counsel detective was constitutionally obligated to cease all
questioning of defendant immediately; statements made by defendant
during custodial interrogation should have been suppressed, and excluding
defendants confession, remaining evidence of defendants guilt was hardly
overwhelming. State v. Childress, 11/25/15, Knoxville, Easter, 17 pages.
http://www.tncourts.gov/sites/default/files/blakeedwardchildress.pdf

CRIMINAL PROCEDURE: In case in which defendant was arrested at

sobriety checkpoint and subsequently convicted of DUI per se, sobriety
checkpoint was constitutional when notice of roadblock was provided to
local news outlets 17 days prior to date of roadblock, in full compliance with
Tennessee Highway Patrols (THPs) General Order 410-1, which provides
guidelines for establishment and administration of sobriety checkpoints and
requires that THP notify news media no less than two weeks prior to
roadblock; fact that notice of roadblock was not provided to public within
two weeks of date of roadblock notice was provided to news media during
that timeframe and fact that THP failed to provide specific date for
roadblock, choosing to provide only date range, did not render roadblock
deficient. State v. Mitchell, 12/3/15, Knoxville, Thomas, 9 pages.
http://www.tncourts.gov/sites/default/files/mitchellkennethdwayneopn.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: In case in which employee testified that
his left arm began hurting as he stacked concrete molds in course of his
work, employee did not carry his burden of proving that injury arose
primarily out of his employment when authorized providers failed to provide
causation opinion; lack of causation opinion is not immediately fatal to
employees request for temporary medical benefits; enforcing such high
burden early in his claim would yield unreasonable result of prohibiting
employee from receiving medical care for his shoulder condition without
first securing expert opinion on medical causation; employer must provide
employee additional medical evaluation for opinion on medical causation.
Dyer v. Tankersley Concrete, 7/14/15, Tipps, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1136&context=utk_workerscomp

WORKERS COMPENSATION: TCA 50-6-204(a)(3)(A)(i) requires

employee to express a need for medical care before employer is obligated
to provide panel of physicians; when employee first told employer that he
did not want medical treatment, employers delay in providing panel was

appropriate at that time; employee has now requested medical care, and
employer must provide employee appropriate panel of physicians;
employee is not entitled to payment for past medical expenses because he
declined medical treatment when he reported his injury. Dzielak v. Nyrstar
Tennessee Mines, 7/28/15, Addington, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1142&context=utk_workerscomp

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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