TAM-BYTES

September 12, 2016

Vol. 19, No. 37
TAM Webinars
FDCPA: Critical Changes and Current Developments, 60-minute
webinar presented by Ned Hildebrand, with Dunham Hildebrand in
Nashville, on Thursday, October 13, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Slip & Fall Cases in Tennessee: Gathering Evidence, Trial Tactics,
and Using Experts, 90-minute webinar presented by Bryan Moseley,
with Moseley & Moseley in Murfreesboro, on Thursday, October 20, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
Attorneys Civil Rights Update: Excessive Force, Unlawful Arrest,
and More, 90-minute webinar presented by Bryan Moseley, with
Moseley & Moseley in Murfreesboro, on Tuesday, November 1, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
Determining Coverage in Tennessee Uninsured/Underinsured
Motorist Cases, 60-minute audio conference presented by Melanie M.
Stewart, with Heaton & Moore in Memphis, on Tuesday, November 8, at
2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Valuing Damages in Uninsured/Underinsured Motorist Cases in
Tennessee, 60-minute audio conference presented by Melanie M.
Stewart, with Heaton & Moore in Memphis, on Thursday, November 10,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Events

Tennessee Real Estate Law Conference
WHEN: THIS WEEK -- Friday, October 14 (*walk-ins welcome)
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: T. Kevin Bruce, Hagler Bruce & Turner, Memphis; Griffin Dunham,
Dunham Hildebrand, Nashville; Matthew Ellis, Batson Nolan, Clarksville; Pete Ezell,
Baker, Donelson, Bearman, Caldwell & Berkowitz, Nashville; David Wilson Long,
Long, Ragsdale & Waters, Knoxville; Kirk Moser, Old Republic National Title
Insurance Company, Nashville; Scott Thomas, Bass, Berry & Sims, Nashville; and Wes
Turner, Gullett Sanford, Robinson & Martin, Nashville.

HIGHLIGHTS: Special considerations for commercial and investment transactions,

including 1031 exchanges; opinion letters in real estate transactions; hot topics in title
insurance; TILA-RESPA issues, including new requirements and necessary information;
the effect of bankruptcy on commercial and residential real estate; environmental issues
in real estate transactions; ethical considerations in real estate law; and real estate case
law/legislative update.

For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/tn-real-estate-2016
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Probate & Estate Planning Conference for Tennessee Attorneys

WHEN: Thursday & Friday, October 20-21
Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
OCTOBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell
PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Michael W. Dale, Harvill Ross
Hogan and Ragland, Clarksville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Carla Lovell, Sherrard
Roe Voight & Harbison, PLC, Nashville; Barbara Boone McGinnis, Elder Law

Practice of Timothy L. Takacs, Hendersonville; Hunter R. Mobley, Howard Mobley

Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek,
PLLC, Nashville; Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss,
Sobel, Poss & Moore, Nashville; and M. Matthew Thornton, Bourland, Heflin,
Alvarez, Minor & Matthews, PLC, Memphis.

DECEMBER FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere &
Bell PLC, Jackson; Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan,
Goodman Callahan & Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker,
Behm & Capparella P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson,
PLLC, Knoxville; Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight &
Harbison, PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek,
PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville;
Julie Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss &
Moore, Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L.
Takacs, Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor
& Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips for
probating a will and administering estates; planning for digital assets; probate litigation
case law and legislative update; ethical issues facing trust and estate planning attorneys;
and ethics in elder care.

For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/probate
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Tennessee Workers Comp Conference

WHEN: November 9, 10, & 11
Wednesday afternoon, Thursday (all day), & Friday (morning),
WHERE: Franklin Embassy SuitesNashville South/Cool Springs
CLE: Earn up to 15 hours of CLE (14 GENERAL and 1 DUAL)
On Thursday, attendees may choose to attend a track designed for attorneys or one
designed for employers and others or you may mix the tracks to better serve your
needs. You get an interactive program, including panel discussions the speakers
welcome your questions and feedback.

FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela

Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF WORKERS
COMPENSATION: Troy Haley; Brian Holmes; and Robert B. Snyder, M.D.
WORKERS COMP/EMPLOYMENT LAW ATTORNEYS: Mary Dee Allen, Wimberly
Lawson Wright Daves & Jones PLLC; Fred Baker, Wimberly Lawson Wright Daves &
Jones PLLC ; Leslie Bishop, Lewis, Thomason, King, Krieg, & Waldrop, P.C.; Kitty
Boyte, Constangy, Brooks, Smith & Prophete, LLP; Adrienne B. Fazio, Manier &
Herod; T. Joseph Lynch, III, Wimberly Lawson Wright Daves & Jones PLLC;
Marshall McClarnon, Ponce Law; Stacie D. Miller, Arnett, Draper & Hagood, LLP;
Jessica Housch Silinsky, Carr Allison; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. EMPLOYMENT LAW ATTORNEY: Greg Grisham, Ford &
Harrison LLP. OTHERS: Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine
and Rehabilitation, subspecialty Board Certification in Pain Medicine and Dawn
Trojan-Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Youll hear from Chief Judge Ken Switzer and Judge Pam Johnson,
with the Court of Workers Compensation Claims, as well as Judges Tim Conner and
Marshall Davidson of the Workers Compensation Appeals Board; youll gain insight on
causation issues under the new law from a panel of attorneys and physicians, hear about
when it is appropriate to terminate an employee who has filed a workers comp claim, and
receive a comparison of how workers comp injuries are resolved under the old (preJuly 1, 2014) versus the new (post-July 1, 2014) law; youll get an update on the latest
rulings from the Workers Compensation Appeals Panels, the Workers Compensation
Appeals Board, and the Court of Workers Compensation Claims; youll hear from Bureau
of Workers Compensation representatives on the employer penalty process, Drug
Formulary, pain management rules, and the ombudsman/mediation program; and youll
also get up to date on complex issues, such as Medicare set-asides, handling disputes over
an employees future medical benefits, new pain management rules, hot topics from the
plaintiffs perspective, and ethical issues arising under the new law.

For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/tn-workers-comp
************************************************************

Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, November 17-18
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge Thomas R.
Frierson, II, Court of Appeals, Eastern Section; Judge W. Neil Thomas, III, Circuit Court,
Hamilton County; Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County;
Brandon Bass, Law Offices of John Day, PC; Harlan Dodson, Dodson, Parker, Behm &
Capparella, PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; John J. Hollins, Jr., Thompson Burton PLLC; Helen Rogers, Rogers, Kamm

& Shea; Kara E. Shea, Butler Snow LLP; Tom Shaw, Assistant General Counsel, Corrections
Corporation of America; W. Russell Taber, III, Riley Warnock & Jacobson, PLC; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC; Chris Vrettos, Gideon, Cooper & Essary
PLC; and Clifford Wilson, Howard Tate Sowell Wilson Leathers & Johnson, PLLC.

HIGHLIGHTS: Get an overview from Chancellor Ellen Hobbs Lyle about the practice and
procedures in the states new business court; get up to date on the latest developments in the
areas of personal injury, family law, and real estate; get practice pointers from Hamilton
County Circuit Judge Neil Thomas on oral and written skills to use in filing and presenting
various pretrial motions; learn the ins and outs of appellate practice and procedure and the
deferential abuse of discretion standard of review from Court of Appeals Judge Frank Clement;
get tips and strategies on advising your clients about the time overtime procedure, which is set
to take effect on December 1; learn how to use websites and social media to promote yourself
and your law practice; get an insiders perspective from the Chief Disciplinary Counsel on the
Boards recent developments; gain insight from Court of Appeals Judge Thomas Frierson on
accepting, terminating, or declining representation.

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Family Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, December 1-2
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton PLLC, Memphis;
Judge Joe Binkley, circuit court, Davidson County; Judge Robert L. Childers, circuit
court, Shelby County; J. Todd Faulkner, Law Office of J. Todd Faulkner, Nashville;
Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy) D. Helton, II, Helton
Law Office, Brentwood; Candi Henry, Dodson Parker Behm & Capparella PC,
Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard, Nashville; Judge Phillip
Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; Eileen Burkhalter Smith, Disciplinary
Counsel, Board of Professional Responsibility; and Judge Joseph Woodruff, circuit
court, 21st Judicial District (Hickman, Lewis, Perry, and Williamson counties).

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;

technology for the family law practitioner; retirement plans and QDROs; practical tips
from judges across the state; spousal/child support awarding, modifying, or
terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family
matters; case law/legislative update; ethics and professionalism in family law practice;
and attorneys ethical use of social media.

For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/family-law-2016

IN THIS WEEKS TAM-Bytes

Workers Comp Appeals Board, in case in which basis of employees
earnings changed after he became sales representative, says correct
apples to apples comparison for purposes of determining whether
employee returned to work at wage equal to or greater than wage he
was receiving prior to his injuries is between base pay of two jobs;
Court of Appeals holds that contempt is proper remedy for breach of
property settlement agreement that has been incorporated into
divorce decree;
Court of Criminal Appeals says that although trial court can decline to
give self-defense instruction if it finds that defendant was engaged in
unlawful activity at time he or she claims self-defense, when issue of
self-defense is fairly raised by evidence, trial court should not deny
defendant instruction on self-defense solely on basis that defendant
was engaged in unlawful activity; and
Court of Criminal Appeals rules trial court erred in finding defendant
in direct contempt of court and summarily sentencing him to 10 days
in jail when trial court relied solely on defendants failure to appear at
scheduled hearing as defendants alleged willful conduct occurred
outside of courts presence or ability to perceive.
WORKERS COMP APPEALS PANEL
WORKERS COMPENSATION: When comparison of employees preand post-injury wages for purposes of determining whether employee had
meaningful return to work was complicated when basis of employees
earnings changed after he became sales representative prior to his injuries,
employee could anticipate earning minimum of $560 in 40-hour week
without regard to overtime, after his placement in sales department, he could
anticipate earning lesser amount of $500 per week without regard to
commissions correct apples to apples comparison for purposes of
determining whether employee returned to work at wage equal to or greater
than wage he was receiving prior to his injuries is between base pay of
two jobs; trial court correctly found that employee did not have meaningful
return to work and that his award of permanent disability benefits was not
limited to 1.5 times his medical impairment. Corso v. Accident Fund
Insurance Co., 9/2/16, Nashville, Bivins, 12 pages.
http://www.tncourts.gov/sites/default/files/corso-accidentfund.opnjo_.pdf

COURT OF APPEALS
FAMILY LAW: Contempt is proper remedy for breach of property
settlement agreement that has been incorporated into divorce decree; when
marital dissolution agreement is incorporated into divorce decree, only
certain provisions of agreement merge into divorce decree and lose their
contractual nature; evidence did not preponderate against trial courts
finding that husbands failure to comply with parties divorce decree was
willful when husband engaged in calculated pattern of delay, deception, and
obscuration to defeat his obligations in divorce decree regarding property
issues, making it difficult for wife to realize her rightful property rights as
set forth in decree. Gibbs v. Gibbs, 9/7/16, Knoxville, Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/gibbs_v_gibbs.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of two counts
of aggravated child abuse of child eight years of age or less and two counts
of aggravated child neglect of child eight years of age or less, and trial judge
merged two aggravated child abuse convictions and merged two aggravated
child neglect convictions, because evidence, while sufficiently establishing
that victim suffered bodily injury, was insufficient to show that victim
suffered serious bodily injury and that victims injury was inflicted by
dangerous instrumentality, and because trial court erred by admitting nontestifying co-defendants statements into evidence, defendants convictions
for aggravated child abuse and aggravated child neglect by inflicting serious
bodily injury are reversed; because sufficient evidence established that
victim suffered bodily injury, case is remanded to trial court for new trial on
lesser charges of child abuse and child neglect. State v. Love, 9/7/16,
Nashville, Montgomery, partial dissent by Ogle, 24 pages.
http://www.tncourts.gov/sites/default/files/lovejordangregoryopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of first

degree premeditated murder, first degree felony murder during perpetration
of or attempt to perpetrate robbery, attempted first degree murder, especially
aggravated robbery, and attempted especially aggravated robbery, evidence
was not sufficient to convict defendant of attempted especially aggravated
robbery when, although victim testified at suppression hearing that one of
men searched her purse but that nothing was taken, this evidence was not

presented to jury at trial, thus jury heard neither direct nor circumstantial
evidence from which it could reasonably infer that defendant or codefendant attempted to take property from victim; defendants attempted
especially aggravated robbery conviction is reversed, and charge is
dismissed defendants other convictions are affirmed; defendant had no
reasonable expectation of privacy in another persons cell phone data and
records, and hence, defendant lacked standing to challenge search of cell
phones belonging to other individuals. State v. Hawthorne, 9/7/16,
Knoxville, Montgomery, 42 pages.
http://www.tncourts.gov/sites/default/files/hawthornejerricoopn.pdf

CRIMINAL LAW: In DUI case, evidence was sufficient for jury to find that
defendant was in physical control of her vehicle when she was positioned in
drivers seat, motor was running, and she had exhibited ability to direct use of
vehicle by unlocking it, turning heat on, and rolling down window; although
vehicles key fob was in motel room defendant shared with her fianc
(Anglen), both defendant and Anglen testified consistently that vehicle was
parked directly outside front door of their motel room, and key fob was never
more than few feet away from defendant and, hence, vehicle was reasonably
capable of being rendered operable; trial judge did not err in denying
defendants motion to suppress evidence when officers actions in reaching
into defendants vehicle and shaking her were justified under community
caretaking exception; DUI statute is not unconstitutionally vague although
statute does not define term physical control, statute is sufficiently definite
to put defendant on notice that falling asleep in drivers seat of running
vehicle while intoxicated could subject her to prosecution for DUI by physical
control. State v. Conkin, 9/7/16, Knoxville, McMullen, 17 pages.
http://www.tncourts.gov/sites/default/files/conkinjaymeopn.pdf

CRIMINAL LAW: Trial court can decline to give self-defense instruction

if it finds that defendant was engaged in unlawful activity at time he or she
claims self-defense, but when issue of self-defense is fairly raised by
evidence, trial court should not deny defendant instruction on self-defense
solely on basis that defendant was engaged in unlawful activity; trial courts
determination as to whether self-defense is raised by evidence is entirely
different inquiry than jurys determination of whether defendant was
engaged in unlawful activity for purposes of self-defense statute; although it
has not yet done so, General Assembly has authority to specify any criminal
offenses that would constitute unlawful activity for purposes of self-defense
statute, and should it choose to do so, General Assembly could determine
whether misdemeanors, outstanding warrants, and other less serious criminal
offenses would constitute type of unlawful activity envisioned by self-

defense statute, and it could also require causal relationship between

unlawful activity and use of deadly force before defendant is precluded
from claiming self-defense; although trial court should not instruct jury on
uncharged offenses as part of self-defense instruction, state may still offer
proof of facts and circumstances surrounding and leading up to defendants
conduct to show that defendant was engaged in unlawful activity at time he
used force. State v. Perrier, 9/6/16, Jackson, McMullen, 39 pages.
http://www.tncourts.gov/sites/default/files/perrierantoineopn_0.pdf

CRIMINAL PROCEDURE: Even when trial court admits witnesss

hearsay statements as substantive evidence, and witness claims at trial not to
remember information contained within hearsay statements, Confrontation
Clause is not violated when defendant has opportunity to cross-examine
witness at trial. State v. Taylor, 8/31/16, Jackson, Dyer, 21 pages.
http://www.tncourts.gov/sites/default/files/taylorl_opinion.pdf

CRIMINAL PROCEDURE: Trial court erred in finding defendant in

direct contempt of court and summarily sentencing him to 10 days in jail
when defendants conduct was not willful misbehavior, and it did not occur
in presence of trial court trial court relied solely on defendants failure to
appear at 1/16 scheduled hearing in reaching its decision, and although trial
court witnessed defendants absence from 1/16 hearing, defendants alleged
willful conduct occurred outside of courts presence or ability to perceive;
trial courts judgment is reversed, defendants conviction is vacated, and
case is remanded for hearing after proper notice. State v. Cathey, 9/1/16,
Nashville, Dyer, 4 pages.
http://www.tncourts.gov/sites/default/files/catheyb_opinion.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, who worked for
automotive parts manufacturer, alleged that he fell at work when loading scrap
into box, testimony conclusively showed that employees accident did not
involve employment hazard such as wooden pallet or slippery floor, and
hence, his claim for temporary disability, medical benefits, and medical bill
reimbursement is denied; all evidence showed that employees right leg
simply gave way, without foreign stimulus or employment hazard, and hence,
employees injury was idiopathic in nature and, therefore, not compensable.
Holder v. Kyowa America Corp., 4/28/16, Nashville, Baker, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1401&context=utk_workerscomp

WORKERS COMPENSATION: When employee, salaried Service

Manager for employers Knoxville and Chattanooga locations, received call
concerning customer wishing to rent truck from Knoxville location, service
technician on call contacted employee to advise he could not handle rental
because he was on lake, employee drove from his residence in Sevier
County to Knoxville to complete rental process with customer, and while
returning home, on-coming vehicle crossed over center lane and struck
employees vehicle, injuring employee, injury arose primarily from hazard
to which employee was exposed as direct result of his employment when, on
day of accident, on-call service tech received call for truck rental, on-call
service tech contacted employee and advised he was unable to meet
employers customer at store to complete rental, employee, as service
manager, was responsible for handling call if service tech was unable to do
so, and employer reimbursed employees mileage expenses. Flippen v.
Murphy-Hoffman Co., 4/29/16, Knoxville, Knott, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1404&context=utk_workerscomp

WORKERS COMPENSATION: Evidence submitted by employee was

insufficient to establish causal connection between employees chest pain
and nausea, which led to cardiac catheterization and resulting femoral nerve
injury, thus requiring denial of his request for workers compensation
benefits; medical evidence established at best that employees symptoms are
possibly attributable to his work-related exposure to diesel fumes; under
remedial nature and liberal interpretation of previous law, expert testimony
establishing possible causal connection, when combined with adequate lay
testimony, may have been sufficient to establish causation, but employee
now has burden of proving by expert testimony more likely than not
considering all causes as opposed to speculation and possibility, his
employment was primary cause of his injury; medical evidence presented in
employees case failed to do so. Manuel v. A-1 Workforce Inc., 5/5/16,
Kingsport, Durham, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1440&context=utk_workerscomp

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