TAM-BYTES

December 26, 2016

Vol. 19, No. 52

TAM Webinars

The Tennessee Attorneys Update on the Revised Uniform Fiduciary

Access to Digital Assets Act, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, February 16,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Healthcare Liability Cases in Tennessee: Notice and Certificate of

Good Faith, 60-minute webinar presented by Brandon Bass, with the
Law Offices of John Day in Brentwood, and Chris Tardio, with Gideon,
Cooper & Essary in Nashville, on Thursday, February 23, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

IN THIS WEEKS TAM-Bytes

Supreme Court rules businesses do not have duty to acquire and

make available automated external defibrillators;
Supreme Court adopts good faith exception for admission of
evidence when officer has reasonably and in good faith conducted
search within scope of warrant officer believes to be valid, but is later
determined to be invalid solely because of good faith failure to
comply with affidavit requirement of TCA 40-6-103 and 40-6-104
and TRCrP 41(c)(1);
Court of Appeals affirms trial courts finding that even if dog or
person was in road, officer nevertheless committed negligence in
crossing several lanes of traffic to hit plaintiffs vehicle that was
traveling in opposite direction;
Court of Appeals, in declaratory judgment action, rules defendant was
not residing in insureds house for purpose of household exclusion in
automobile insurance policy when defendant and insured lived together
as matter of economic expediency and not in any sense as family;
 Court of Appeals says mode of pre-suit notice set forth in TCA 66-
34-602(a)(2) of Prompt Pay Act is directory rather than mandatory
and requires only substantial compliance;
Court of Appeals affirms trial courts finding that husband was not
voluntarily underemployed for child support purposes when parties
agreed that husband would be stay-at-home parent, which limited
husbands ability to begin or maintain career, and even though husband
has bachelors degree, he has never earned more than $14 per hour;
Court of Appeals says trail income resulting income earned from
financial products that he has previously sold and continues to
manage distributed as marital property should not be considered
income for child support or spousal support purposes;
Court of Appeals rules that because trial judge learned information
concerning facts in dispute from extrajudicial source, recusal was
required by Canon 2.11 of Code of Judicial Conduct; and
Court of Criminal Appeals affirms denial of judicial diversion in
case in which 22-year-old defendant was convicted of mitigated
statutory rape, based on his sexual assault of 17-year-old sorority
member at college party.

SUPREME COURT

TORTS: In case in which decedent collapsed and died after participating in

cycling class at fitness and recreation facility owned and operated by church,
seller of automated external defibrillator (AED) did not owe duty to
decedent or other users of fitness facility independent of its contract with
church, and church had no statutory or common law duty to acquire or use
AED it purchased from seller, and, as result, decedent was not third party
beneficiary of churchs contract with seller; while Tennessees AED statutes
encourage entities to acquire AEDs and make them available for use, these
statutes do not impose any affirmative or mandatory duty on business to do
so, nor do these statutes mandate use of AEDs that are acquired. Wallis v.
Brainerd Baptist Church, 12/22/16, Knoxville, Clark, unanimous, 20 pages.
http://www.tncourts.gov/sites/default/files/wallissopn.pdf

CRIMINAL PROCEDURE: Good faith exception is adopted for

admission of evidence when law enforcement officer has reasonably and in
good faith conducted search within scope of warrant officer believes to be
valid, but is later determined to be invalid solely because of good faith
failure to comply with affidavit requirement of TCA 40-6-103 and 40-6-104
and TRCrP 41(c)(1); in issue of first impression with regard to whether
spectators in courtroom may wear buttons displaying images of victims,
trial court should not allow buttons to be worn if they are so inherently
prejudicial as to pose unacceptable threat to defendants right to fair trial or
when defendant establishes actual prejudice; trial court did not abuse
discretion by allowing jury, which had already begun deliberations, to view
defendants video recorded statement in courtroom with members of public
present. State v. Davidson, 12/19/16, Knoxville, Lee, 4-0, 97 pages.
http://www.tncourts.gov/sites/default/files/davidsonl.opn_.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee sustained electric

shock injury while working on power line, he sustained burns to his back
and groin area and left side of his head, he bit his tongue severely and
injured his right knee, and he further asserted that he developed depression,
headaches, and post-traumatic stress disorder (PTSD) as result of accident,
evidence did not preponderate against trial courts finding that employee
was permanently and totally disabled as result of his on-job accident when
vocational expert testified as to different levels of vocational disability,
according to restrictions or recommendations of several providers,
employees disability was zero percent based on opinions of Drs. Masterson
and Anton, 56.85% based on restrictions of Dr. Berry, and 97.58% when
treating Dr. Dalals recommendations as restrictions and interpreting
avoid prolonged standing to mean able to perform no more than
occasional standing, these opinions were based solely on employees
physical injuries, and employee and his wife testified to continuing effects
of accident on his ability to function in daily life, and they described
ongoing anxiety, depression, anger management problems, and sleep
disturbance. Benson v. Southern Electric Corp. of Mississippi, 12/19/16,
Jackson, Acree, 11 pages.
http://www.tncourts.gov/sites/default/files/bensoneopn.pdf

COURT OF APPEALS

TORTS: When plaintiff alleged that police officer drove city vehicle
negligently and without warning, crossed traffic and struck the vehicle
driven by [plaintiff] head on, officer testified that he saw object approach
on his right side which he thought at time to be person and that he shuffle
steered toward middle turn lane in order to avoid hitting person, and trial
court ruled in plaintiffs favor, evidence did not preponderate against trial
courts finding that even if dog or person was in road, officer nevertheless
committed negligence in crossing several lanes of traffic to hit plaintiffs
vehicle that was traveling in opposite direction; trial court did not find
credible evidence regarding dog or person, and hence, trial court was not
required to assign fault to defendant that it found not to have been
established by evidence; even assuming arguendo that trial court believed
in existence of dog, it may not apportion any fault to phantom nonparty;
evidence clearly showed that plaintiff sustained pain and suffering as result
of accident, and evidence did not preponderate against trial courts total
award of $90,000 in compensatory damages. Turner v. City of Memphis,
12/20/16, Jackson, Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/turnerkobieopn.pdf

INSURANCE: When motorcycle owned and operated by Archie, on which

Cossitt was passenger, hit pothole and veered out of control, Archie died
and Cossitt was seriously injured, Archie had automobile insurance policy
containing household exclusion clause stating that insurer did not provide
coverage for any person or entity for bodily injury or property damage to
any covered person or any person residing in the covered persons
household, and insurer sought declaratory judgment asserting that
household exclusion clause in Archies insurance policy applied to Cossitts
injuries because Cossitt was residing in Archies household at time of
accident, trial court properly found that Cossitt was not residing in insureds
household at time of accident for purposes of determining liability coverage
when Cossitt only moved in with Archie after her two prior living
arrangements became unavailable, although Cossitt listed Archies address
on her drivers license, she did not receive her mail there, apart from bed,
Cossitt kept her furniture in storage while living with Archie, two were not
related and their relationship was not intimate, each lived independently of
other with exception of their shared house and social activities, Cossitt was
free to move out at any time, and Cossitt paid Archie $200 per month in
rent. Tennessee Farmers Mutual Insurance Co. v. Estate of Archie,
12/21/16, Jackson, Goldin, 8 pages.
http://www.tncourts.gov/sites/default/files/tennessee_farmers_mutual_insopn.docx_.pdf

COMMERCIAL LAW: When contractor filed suit against owner for

violations of Prompt Pay Act and notified owner of violations by Federal
Express and email, and owner moved for summary judgment on ground that
contractor failed to strictly comply with notice provision requiring notice be
sent by registered or certified mail, return receipt requested, trial court erred
in finding strict compliance was required; mode of pre-suit notice set forth in
TCA 66-34-602(a)(2) is directory rather than mandatory and requires only
substantial compliance; because contractor provided owner with information
it was required to provide under statute before it filed suit and because
owner was not prejudiced by method contractor used to provide notice,
contractor substantially complied with statute. Aarene Contracting LLC v.
Krispy Kreme Doughnut Corp., 12/20/16, Knoxville, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/aarenecontractingopn.pdf

FAMILY LAW: Evidence did not support trial courts termination of

fathers parental rights to his daughter on grounds of abandonment by willful
failure to visit and willful failure to support, substantial non-compliance with
requirements of permanency plan, and persistence of conditions; while
father failed to pay financial support for child and may have failed to
provide information to Department of Childrens Services regarding his
criminal history, he made efforts to legitimate child, complied with drug
testing requirement, remained drug free, stayed in compliance regarding
process under Interstate Compact on Placement of Children (ICPC), and
made efforts to visit child even though he was not ultimately permitted to do
so; while father failed to accomplish some requirements of permanency
plans, considering his limitations due to his period of incarceration, his
residence in Kentucky, his financial situation, and decisions made by DCS
regarding visitation, father sincerely attempted to meet his responsibilities,
even though he never completed alcohol and drug assessment, domestic
violence counseling, anger management counseling, or family counseling as
required. In re Heaven J., 12/22/16, Jackson, Gibson, 20 pages.
http://www.tncourts.gov/sites/default/files/inreheavenjopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

finding that husband is not voluntarily underemployed for child support
purposes when parties agreed that husband would be stay-at-home parent,
which limited husbands ability to begin or maintain career, and even
though husband has bachelors degree, he has never earned more than $14
per hour his current pay of $13.85 per hour is highest wage he has ever
been paid; trial court did not err in failing to make deviation, as
extraordinary educational expense, in child support for wifes payment of
private school expenses for couples two children based on possibility that
wife may or may not incur extraordinary educational expenses in future;
trial court did not abuse discretion in finding that husband could not be
rehabilitated and, therefore, awarding him alimony in futuro when,
considering husbands age, education level compared to wife, who is
medical doctor, and limited scope of his work experience, husband will not
be able to achieve earning capacity that will permit his standard of living
after divorce to be reasonably comparable to post-divorce standard of living
expected to be available to wife; because trial court did not make adequate
findings relative to its determination that wife has ability to pay husband
alimony of $2,400 per month, alimony award is vacated, and case is
remanded for reconsideration of amount of alimony, if any, to be awarded.
Cain-Swope v. Swope, 12/23/16, Nashville, Clement, 22 pages.
http://www.tncourts.gov/sites/default/files/swopec.opn_.pdf

FAMILY LAW: Trial court properly classified (as divisible marital asset)
and valued (at $400,000 or two times its annual amount) fathers trail
income resulting income earned from financial products that he has
previously sold and continues to manage derived from his financial
planning practice; trail income distributed as marital property should not be
considered as income for child support or spousal support purposes. Fuller
v. Fuller, 12/21/16, Knoxville, Frierson, 14 pages.
http://www.tncourts.gov/sites/default/files/fuller.opn_.final2_.pdf

CIVIL PROCEDURE: In retaliatory discharge suit in which trial judge,

when asked to rule on defendants motion for physical examination by
certified rehabilitation counselor (CRC), phoned director of CRC
department at university for information regarding program in order to
determine whether CRCs are even qualified to testify as experts, because
trial judge learned information concerning facts in dispute from
extrajudicial source, recusal was required by Canon 2.11 of Code of
Judicial Conduct; while trial judges action stemmed not from bias or
prejudice against one party, but simply from desire to educate herself as to
unfamiliar issues so that she could render informed decision on ability of
CRCs to testify as experts, trial judge gained personal extrajudicial
knowledge of facts that are in dispute in the proceeding through her
communication with director, and, as such, appearance of impropriety was
created under Canon 2.11 necessitating recusal. Holsclaw v. Ivy Hall
Nursing Home Inc., 12/19/16, Knoxville, Stafford, concurrence by
Dinkins, dissent by Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/holsclawjopn_1.pdf

CIVIL PROCEDURE: When plaintiff filed suit against Dr. Howe, SP

Acquisition Corporation d/b/a Grandview Medical Center, PHL, Inc. d/b/a
The Drug Store (together with Howe and Grandview, Tennessee defendants),
Ponder Pharmacy (Ponder), and North Jackson Pharmacy (NJP), amended
complaint alleged that Tennessee defendants and appellees (Ponder and NIP)
had engaged in civil conspiracy to overprescribe addictive pain medications
to plaintiff both before and during her pregnancy, trial court properly
dismissed for lack of personal jurisdiction suit against Ponder (Georgia
corporation) and NJP (Alabama corporation); plaintiffs failed to show that
either Ponder or NJP has purposefully established significant contacts with
Tennessee so as to establish specific in personam jurisdiction over either
appellee; there is no showing that either appellee purposefully directed its
commercial activities to Tennessee residents contacts between appellees
and Tennessee resulted from plaintiffs unilateral pursuit of appellees
services; jurisdiction over appellees, under conspiracy theory of jurisdiction,
has not been satisfied by plaintiff. Turner ex rel. Turner v. Howe, 12/20/16,
Nashville, Armstrong, 15 pages.
http://www.tncourts.gov/sites/default/files/turner_ex_rel._turner.hannah_v.howe_.charles.opn_.pdf

CIVIL PROCEDURE: In suit by plaintiff, former employee of two FedEx

companies, against FedEx Corporation, Inc., FedEx Corporate Services
Inc., and three individual defendants alleging claims for intentional and
negligent misrepresentation and accusing defendants of making false
representations regarding impact that signing severance agreement would
have on plaintiffs ability to work on FedEx projects, trial court properly
ruled that plaintiffs claims were subject to one-year statute of limitation,
rather than three-year statute of limitation, when allegations in complaint
were indicative of tort to person, not tort involving injury to property
interest whereas plaintiff sought to recover for loss of earnings and loss of
earning capacity, there was no allegation that he had any type of property
right to continue working on FedEx projects. Sakaan v. FedEx Corp.,
12/21/16, Jackson, Goldin, 12 pages.
http://www.tncourts.gov/sites/default/files/sakaanmoufakopn.pdf

CRIMINAL PROCEDURE: In case in which appellant was convicted of

number of criminal counts related to distribution of large amounts of
marijuana, and Tennessee Department of Safety and Homeland Security
(Department) declared as forfeited certain of appellants properties alleged
to be derived from illegal drug transactions, order of forfeiture entered by
administrative law judge (ALJ) was supported by preponderance of
evidence; doctrine of collateral estoppel bars appellant from re-litigating
whether evidence should have been suppressed as that issue was resolved
on appeal during appellants criminal proceedings; reversal of three of
appellants money laundering counts does not serve to preclude forfeiture
of appellants property given fact that present civil action is governed by
different statute with different elements required to be proven not by
reasonable doubt standard but instead by preponderance of evidence
standard. Lockhart v. Commissioner of Department of Safety, 12/21/16,
Nashville, Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/lockhartv.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of failing to

obey traffic control device when there was circumstantial evidence that traffic
light was flashing red when defendant passed through it without stopping, and
fact that officer did not personally observe traffic light in question at time of
offense is irrelevant. State v. Noble, 12/22/16, Nashville, Woodall, 6 pages.
http://www.tncourts.gov/sites/default/files/noblekathybell.pdf

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

homicide (as lesser included offense of first degree premeditated murder)
and assault (of victims wife), trial judge did not err in denying defendants
request not to charge any lesser included offenses of first degree
premeditated murder when defendant was not entitled, as matter of trial
strategy, to preclude jury from considering his guilt as to lesser offense
included in crime charged; defendants convictions for both reckless
homicide and assault do not violate double jeopardy when convictions arose
from separate instances of criminal conduct committed against two separate
victims. State v. Melton, 12/22/16, Nashville, Holloway, 21 pages.
http://www.tncourts.gov/sites/default/files/meltontravisdewayne.pdf

CRIMINAL SENTENCING: In case in which 22-year-old defendant was

convicted of mitigated statutory rape, based on his sexual assault of 17-year-
old sorority member at college party, trial judge not abuse discretion in
denying defendants request for judicial diversion when factors in favor of
granting diversion defendants lack of criminal record, defendants positive
social history, and defendants amenability to correction were outweighed
by circumstances of offense, deterrence value to defendant and others, and
best interest of public; case is far different from one in which victim, too
young to legally consent, does not contest that she willingly engaged in
sexual encounter with older defendant; fact that incident did not technically
occur on campus does not detract from its implicating college culture and
college milieu. State v. Hutchins, 12/20/16, Knoxville, Glenn, 11 pages.
http://www.tncourts.gov/sites/default/files/hutchinsdylanopn.pdf
CRIMINAL SENTENCING: In case in which defendant was initially
placed on probation following convictions for driving on revoked license
and violation of community supervision as registered sex offender, trial
judge erred in revoking defendants probation without de novo hearing and
on single ground that was not properly before trial court for consideration
written notice to defendant of his probation violation did not include theft
charge, and as such, that ground cannot be basis to revoke probation; trial
courts revocation of defendants probation is reversed, and probation
violation warrant is dismissed. State v. McCaig, 12/19/16, Jackson,
Woodall, 8 pages.
http://www.tncourts.gov/sites/default/files/mccaigdanielopn.pdf

TRIAL COURTS

COMMERCIAL LAW: When plaintiff investor loaned substantial sums

to defendant LLC, parties entered into Secured Senior Convertible
Promissory Note and Pledge and Security Agreement (Pledge Agreement)
which gave plaintiff right to exercise proxy of LLC member, defendant
Carter, on LLC votes should LLC default, and plaintiff claims that default
has occurred, triggering Voting Rights Provision and authorizing him to
replace defendants as managers, plaintiffs application for temporary
injunction is denied; Voting Rights Provision is not enforceable under
Tennessee law as it constitutes transfer of governance rights and is
ineffective for failure to obtain required consents; plaintiff has not
demonstrated substantial likelihood of success on merits of whether default
has occurred because operative text of Pledge Agreement, becomes
insolvent, is ambiguous when applied to facts; plaintiff did not clearly
establish that defendants have breached Pledge Agreement by withholding
or concealing information from plaintiff; preliminary evidentiary record
does not demonstrate that closing of acquisition of LLC has occurred,
condition required for additional premium to greatly increase amount due
and payable under note. Corgan v. Impact Ventures LLC, 10/31/16,
Davidson Chancery, Lyle, 19 pages.

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employee came forward with

sufficient proof from which to conclude he is likely to prevail in
establishing his employment was principally localized in Tennessee when
he was Arkansas resident, employer hired him in 2010 for Memphis, Tenn.,
service technician position, he worked for employer as Memphis employee
and reported to service manager in Memphis, employees work vehicle,
computer, and all other equipment essential to his job came from Memphis
office, according to manager, employer considered employee Tennessee
employee, employer did not have Arkansas branch during employees
employment beginning in 2010, employee sustained 2015 work-related
injury in Arkansas, his work territory extended from Jackson, Tenn., to
Arkansas, he performed substantial work in Tennessee, which included
assignments at Pringles facility in Jackson four weeks per year and at city
schools in Memphis four weeks per year, he also performed jobs at another
facility in Tennessee for same period of time, two times per year, and
employee also regularly traveled to Memphis office once per month for
meetings to discuss accounts and four times per year for two-day meetings.
Mullins v. Honeywell International, 9/23/16, Memphis, Luttrell, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1542&context=utk_workerscomp

WORKERS COMPENSATION: When employee, truck driver, alleged

that he pulled something in his back on 10/12/15 while lifting ramps on
trailer used to transport backhoe, doctor diagnosed back strain, and MRI
revealed large thoracic mass in area between backbone and right lung that
extended into his thoracic spine, evidence at this time indicates that
employees current need for medical care is product of thoracic mass, not
his back strain, when doctor opined work injury was not likely cause of
thoracic mass and employee failed to provide countervailing proof. Bailey
v. Team Construction LLC, 9/26/16, Nashville, Baker, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1539&context=utk_workerscomp

WORKERS COMPENSATION: When employee fell while working at

employers engine manufacturing facility on 12/22/15, employer did not
provide panel of physicians, employee sought treatment with Dr. Haslam,
MRI showed tear with retraction of distal biceps tendon, and surgical repair
was performed on 2/22/16, employee came forward with sufficient
evidence to show he is likely to prevail at hearing on merits with respect to
his claim for medical benefits; Haslam is designated as employees
authorized treating physician for future treatment; because employee
presented no proof that he presented Haslams restrictions to employer or
gave employer opportunity to make offer of light duty, he is not likely at
this time to establish entitlement to temporary partial disability benefits;
employee may eventually establish entitlement to requested penalty for
unpaid disability benefits, but because benefits awarded at this time are
based upon lesser evidentiary standard than final hearing, it would be
premature to conclude that employee will, in fact, qualify for benefits
under this chapter, and matter of requested penalty is more properly issue
for final compensation hearing of this matter. Warren v. Yates Services,
9/21/16, Murfreesboro, Tipps, 13 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1546&context=utk_workerscomp

WORKERS COMPENSATION: When employee sustained work-related

injury to his right hand on 11/25/15, he left job immediately following
injury and did not return until 12/7/15, there was nothing preventing
employee from calling Human Resources or companys owner to report job
injury, employee elected not to properly report job injury until 12/7/15, and
hence, he is entitled to no benefits before that date; employee presented no
medical proof of disability between 12/7/15 and 4/29/16, when he began
authorized medical treatment, and hence, he has not shown likelihood of
success at trial for temporary disability benefits during this period; once
employee began authorized treatment, doctor placed him on light duty work
status from 4/29/16 to 7/14/16, during this period employer did not provide
light duty due to its prior termination of employees employment, employer
had not terminated employee as of 12/7/15, rather, on 12/7/15, employer
advised employee he must obtain release from company doctor before he
could return to work, employee did not abandon job on 11/25/15 but left
work due to injury, and hence, there was insufficient evidence to hold
termination reasonable and employee is entitled to temporary partial
disability benefits during his treatment with doctor from 4/29/16 to 7/14/16;
doctor performed surgery on employees finger on 7/15/16 and kept him
totally off work until 7/22/16, when he released him to full-duty work, and
employee was totally disabled from working and is entitled to temporary
total disability benefits during this period. Spencer v. Supply Chain
Solutions LLC, 9/26/16, Memphis, Umsted, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1544&context=utk_workerscomp

ATTORNEY GENERAL OPINION

GOVERNMENT: In Tennessee, persons who are not engaged in business

of dealing in firearms under federal law are not required to obtain
background check before making occasional sale or transfer of firearm
pursuant to TCA 39-17-1316(c)(2). Attorney General Opinion
16-44, 12/14/16, 4 pages.
http://www.tn.gov/assets/entities/attorneygeneral/opinions/op16-044.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