TAM-BYTES

March 7, 2016
Vol. 19, No. 10
TAM Webinars
Contract Negotiation Strategies for Business Buyers and Sellers in
Tennessee, 60-minute webinar presented by Nathan L. Barrett, with
Cody Allison & Associates, in Nashville, on Wednesday, April 6, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Mechanics and Materialmens Lien Act: What Attorneys
Must Know, 60-minute webinar presented by Chris Dunn & Joe
Watson, with Waller, Lansden, Dortch & Davis, in Nashville, on
Thursday, April 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Data Breach and Privacy Law: What Tennessee Attorneys Must
Know, 60-minute webinar presented by Russell Taber, with Riley
Warnock & Jacobson, in Nashville, on Tuesday, April 26, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for

Tennessee Attorneys
WHEN: Friday, May 13
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;

Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood
HIGHLIGHTS: Recent developments in pre-suit notice and certificate
of good faith requirements; new summary judgment procedure; how to
turn the tables on a plaintiffs expert; defenses, such as patient
negligence, that may be raised to defeat a plaintiffs healthcare liability
claim; trial tips and tactics from both a plaintiffs and defense perspective;
deposition strategies to help you win at trial; using technology to excel as
an advocate in a healthcare liability case; review of recent healthcare
liability appellate court decisions; a panel discussion of hot topics in
healthcare liability actions; and ethical issues that arise when dealing with
evidence and experts.

Tennessee Business Law Conference

WHEN: Friday, May 20
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,
Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs
Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues in the Tennessee
Business Court Pilot Project; creative practices for handling business
disputes to avoid litigation; mistakes to avoid in drafting LLC operating
agreements; what every attorney needs to know when litigating a business
dispute in Tennessee; what federal tax issues arise when operating a
limited liability company; key issues in drafting an acquisition agreement;
top 10 negotiation strategies for obtaining a settlement in a business
dispute; and ethics for attorneys in business disputes including adequacy
of fees and charges.
For more information call us at (800) 274-6774 or visit www.mleesmith.com.

IN THIS WEEKS TAM-Bytes

Court of Appeals, in reversing summary judgment ruling that
healthcare liability action alleging doctor misdiagnosed plaintiffs
condition was barred by statute of limitation, says it was reasonable
for plaintiff, layperson, to conclude that his symptoms and
treatment given were related to initial diagnosis until he was
informed otherwise;
Court of Appeals reiterates that Tennessee law does not require that
spouse, who signs antenuptial agreement, have knowledge of the
specific appraised values of the other spouses assets, [but]
knowledge of the [other] spouses overall net worth is necessary;
Court of Criminal Appeals says defendants waiver of preliminary
hearing and presentment to grand jury did not constitute detrimental
reliance on written and signed plea agreement with state, which was
ultimately withdrawn by state, such that defendant is entitled to
specific performance of plea agreement; and
Court of Criminal Appeals reverses trial courts grant of
defendants motion to suppress evidence obtained as result of stop
when defendants speeding infraction, odor of alcohol coming from
his vehicle, and his admission that he had consumed three beers
gave officer probable cause to arrest defendant for DUI.

COURT OF APPEALS
TORTS: When plaintiff alleged that he presented to hospital emergency
room on 9/8/12 with fever and progressive numbness that began in his
extremities and spread throughout his body, plaintiff stated that doctor
diagnosed him with Guillain-Barre Syndrome (GBS) and began
administering plasmapheresis treatments, according to plaintiff, it was
later discovered that actual cause of his symptoms was spinal abscess and
that he never had GBS, plaintiff filed healthcare liability action on
12/13/13 alleging that delay in diagnosis of his spinal abscess resulted in
permanent and irreparable spinal cord damage, summary judgment in
favor of doctor based on statute of limitation is reversed because genuine
issue of material fact exits regarding when plaintiff was aware of facts
sufficient to place a reasonable person on notice that the injury was the

result of the wrongful conduct of another; it was reasonable for plaintiff,

layperson, to conclude that his symptoms and treatment given were
related to GBS diagnosis until such time as he was informed otherwise.
Rogers v. Blount Memorial Hospital Inc., 2/29/16, Knoxville, Frierson,
concurrence by Swiney, 13 pages.
http://www.tncourts.gov/sites/default/files/rogers.opn_.final_.pdf

EVIDENCE: In auto accident case in which trial court found that

defendant was not at fault, trial court did not abuse discretion in allowing
jury to consider defendants photographs of vehicles taken immediately
after collision for purpose of impeaching plaintiffs testimony regarding
impact they experienced as result of collision. Garvin v. Malone, 2/26/16,
Nashville, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/garvins.opn_.pdf

CONTRACTS: When buyers purchased property for purpose of

constructing house, buyers and sellers believed property was suitable for
that purpose, one week after obtaining necessary building permits and
commencement of construction, buyers were informed by county that
property was substantially below required Base Flood Elevation (BFE)
and that construction must cease immediately, buyers halted construction
and hired professional engineer to address issue, based on unique drainage
and flooding concerns, engineer concluded that property was not suitable
for construction of residential building and it had not been suitable for
such purpose since land was subdivided in 1999, and buyers filed suit for
rescission, trial court properly granted sellers summary judgment; parties
were mutually mistaken concerning material fact that was
contemporaneously verifiable at time of contracting, and this is ground for
rescission, but contract contract provides that in absence of
contradictory writing in contract, property was accepted in its condition
as of the time of closing assigned risk of mistake to buyers. Gibbs v.
Gilleland, 2/29/16, Nashville, Clement, 15 pages.
http://www.tncourts.gov/sites/default/files/gibbsr.opn__0.pdf

FAMILY LAW: In case in which surviving husband of decedent

challenged validity of their 1992 antenuptial agreement, which stated that
each party waived all claims of inheritance, descent and distribution in
and to the parties[] private and real property, evidence did not
preponderate against trial courts finding that, in 1992, husband did not
enter into antenuptial agreement knowledgeably when both circumstances
surrounding execution of agreement and husbands general knowledge of

decedents assets support finding that agreement was not entered into
knowledgeably; antenuptial agreement may be invalidated when extent
and value of the proponent spouses assets were not easily comprehensible
or ascertainable; Tennessee law does not require that spouse have
knowledge of the specific appraised values of the other spouses assets,
[but] knowledge of the [other] spouses overall net worth is necessary. In
re Estate of Hillis, 2/25/16, Nashville, Clement, 16 pages.
http://www.tncourts.gov/sites/default/files/estate_of_hillis_opn.pdf

FAMILY LAW: Evidence preponderated against trial courts award to

wife of $4,000 per month as alimony in futuro when record did not
support trial courts finding that husbands income was $16,000 per
month, that husband had ability to earn income in future, or that wife was
unable to secure employment beyond three days of waitressing per week
or that she was unable to rehabilitate herself when wife testified that she
attended community college early in her marriage to become court
reporter, and although she did not finish school, she testified that she did
not know any reason she could not return and complete that training.
Franks v. Franks, 2/29/16, Jackson, Gibson, 20 pages.
http://www.tncourts.gov/sites/default/files/frankscathyturnboopn.pdf

GOVERNMENT: Tax administration information, which is deemed

confidential by TCA 67-1-1702(a) and is defined as criteria or standards
used or to be used for selection of returns or persons for audit or
examination, or data used or to be used for determining such criteria or
standards, audio procedures, and any other information relating to tax
administration, encompasses tax study documents requested by plaintiff in
his petition for access to public records; trial court properly determined
that tax study documents requested by plaintiff constituted tax
administration information and were, therefore, confidential and not open
to public inspection. Carter v. Martin, 3/3/16, Nashville, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/carterb.opn_.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In first degree felony murder case, trial judge did not err by
admitting victims statement Bull blocked me in under dying
declaration exception to hearsay rule when, although victim never made
express statement that he knew he was about to die, multiple witnesses
that had been with victim following shooting testified as to victims grave

condition, victim was bleeding profusely, sweating heavily, and

screaming that he was in pain and that he was having difficulty breathing,
and photographs of scene where victim collapsed depicted several bloodsoaked towels used to stanch bleeding, in addition to victims bloody shirt
and large area of blood on ground; to be admissible as dying declaration,
statement must have been made by individual under belief that death was
imminent, but awareness of impending death may be inferred from facts
and circumstances, language and condition of declarant, and seriousness
of wounds. State v. Crockett, 2/29/16, Nashville, Holloway, 26 pages.
http://www.tncourts.gov/sites/default/files/crockettantonioopn.pdf

CRIMINAL PROCEDURE: In case in which defendant entered into

written and signed plea agreement with state in general sessions court, in
which he waived his right to preliminary hearing and presentment to
grand jury and indicated his intent to plead guilty to aggravated burglary,
after matter was transferred to criminal court but before court could accept
plea agreement, state indicated that it would refuse to abide by terms of
agreement, defendant was ultimately granted preliminary hearing and
indicted, after which he entered open guilty plea to aggravated burglary,
vandalism (valued at $10,000 or more), and theft (valued of $1,000 or
more), and trial court sentenced defendant to concurrent terms of four
years, to be served on supervised probation, for each conviction,
defendants plea agreement was not enforceable absent detrimental
reliance by defendant on its terms; defendants waiver of preliminary
hearing and presentment to grand jury does not constitute detrimental
reliance such that he is entitled to specific performance of plea agreement;
trial court did not err by remanding case for preliminary hearing and
indictment rather than granting defendant specific performance of
agreement. State v. Bobo, 3/2/16, Jackson, Williams, Page not
participating, 11 pages.
http://www.tncourts.gov/sites/default/files/anthony_boboopn.pdf

COURT PROCEDURE: In case in which defendant was arrested on

suspicion of DUI, trial judge erred by granting defendants motion to
suppress evidence obtained as result of stop when defendants speeding
infraction (driving 46 mph in 35 mph zone), odor of alcohol coming from
his vehicle, and his admission that he had consumed three beers gave
officer probable cause to arrest defendant for DUI. State v. Silva, 3/3/16,
Nashville, Williams, dissent by Thomas, 9 pages.
http://www.tncourts.gov/sites/default/files/silvaja.pdf

TRIAL COURTS
CIVIL PROCEDURE: Law firm representing two-member limited
liability company (LLC) must produce to plaintiff, investing member of
LLC, communications between law firm and defendant operating member
of LLC under terms of protective order; production is ordered because at
this stage of suit, plaintiff has not sued LLC, and plaintiffs claims have
not yet been decided to be adverse to LLC, there are actions which have
been taken by defendant which have not yet been decided as coming
within defendants authority to speak and act for LLC with LLC counsel,
and these actions still present issues yet to be decided about whether
actions belong to LLC members collectively, and plaintiff has
demonstrated that good cause exists for documents to be produced.
Wilford v. Coltea, 9/14/15, Davidson Chancery, Lyle, 7 pages.

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee asserted bilateral
carpal tunnel as result of repetitive movement at work, request for
additional panel is denied when employees counsel argued to employers
counsel that panel given to employee was insufficient and that employee
was entitled to another panel of physicians, but these questions were not
marked on Dispute Certification Notice (DCN) although employee had
knowledge of issues prior to issuance of DCN and other than
dissatisfaction with panel, employee failed to provide any legal authority
indicating she was entitled to another panel; when employer requested
signed medical release form so it could obtain employees medical records
for treatment she obtained for alleged injury prior to signing for panel, and
employee argued that since employer did not pay for treatment, it was not
entitled to medical records, Rule 0800-02-21-.15(3) indicates that it does
not matter whether employer paid for treatment or not, as employee
asserted her medical treatment was for her alleged injury. Karig v.
Oddello Industries, 10/6/15, Kingsport, Addington, 8 pages
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1198&context=utk_workerscomp

WORKERS COMPENSATION: When employee, nurse, suffered

compensable physical injury at work on 12/5/14 when she was assaulted
by patient, and she received treatment from authorized treating physician

(ATP), Dr. Jekot, who indicated that employee reached maximum medical
improvement (MMI) from her physical injury on 4/28/15, employer must
provide new panel of orthopedic specialists from which employee may
select new ATP when Jekot retired, effectively leaving employee without
ATP; medical records in file reveal no referral for psychological or
psychiatric evaluation or treatment by ATP, and until employee obtains
such referral from her ATP, court has no statutory authority to order
psychiatric panel or, as employee requests, to designate Dr. Kyser as
authorized psychiatrist; when employees mental injury involves
underlying physical injury, for which she received treatment from Jekot,
and Jekot ended active medical treatment and found that employee
reached MMI for her physical injuries on 4/28/15, employee has not
established that she is likely to prevail on her request for temporary
disability benefits for period of 4/29/15 to present. McNeil v. Trustpoint
Hospital LLC, 10/1/15, Murfreesboro, Tipps, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1193&context=utk_workerscomp

REVENUE RULINGS
TAXATION: Application of Tennessee sales and use tax to service of
converting digital products. Department of Revenue Letter Ruling 15-04,
10/19/15, 7 pages.
http://www.tn.gov/assets/entities/revenue/attachments/15-04.pdf

TAXATION: Application of Tennessee sales and use tax to remotely

accessed software. Department of Revenue Letter Ruling 15-07,
11/23/15, 7 pages.
http://www.tn.gov/assets/entities/revenue/attachments/15-07.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