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TAM-BYTES

March 13, 2017


Vol. 20, No. 11

TAM Webinars

Trust Instead of A Will? The Crucial Client Counsel Update for


Tennessee Attorneys, 60-minute webinar presented by David Heller,
with Martin, Heller, Potempa & Sheppard, LLC in Nashville, on
Wednesday, April 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/trusts-041917 or call us at
(800) 727-5257.

Email, Social Media, Texts, and Video: How to Find and Use
Electronic Evidence to Win Your Case, 60-minute webinar presented by
Russell Taber, with Riley, Warnock & Jacobson, PLC in Nashville, on
Thursday, April 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/social-042017 or call us at
(800) 727-5257.

Medicare Secondary Payer Act: What Attorneys Must Know, 90-minute


webinar presented by Bryan Moseley, with Moseley & Moseley in
Murfreesboro, on Thursday, April 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
For more information, visit: http://www.mleesmith.com/medicare-042717
or call us at (800) 727-5257.

2017 Tennessee Child Support Update: New Cases, Rules, and


Definitions of Underemployment, 60-minute webinar presented by Melody
Luhn, with Norton & Luhn, P.C., in Knoxville, on Thursday, May 4, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: http://www.mleesmith.com/child-support-050417
or call us at (800) 727-5257.
Judgment Enforcement and Contempt Proceedings in Tennessee
Family Law Cases, 60-minute webinar presented by Brent Lankford,
with Stites & Harbison in Nashville, on Thursday, May 4, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/judgment-enforcement-050417
or call us at (800) 727-5257.

On-Site Events

10th annual
Medical Malpractice Conference for Tennessee Attorneys
*(now expanded to 2 Days)*

WHEN: Thursday & Friday, May 4-5


WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Tom Brothers, Davidson County Circuit Court; Judge Jeff
Hollingsworth, Hamilton County Circuit Court; Brandon Bass, Law Offices of John Day
PC, Brentwood; William L. Bomar, Glankler Brown, PLLC, Memphis; Charles Higgins,
Burch, Porter & Johnson, PLLC, Memphis; Clint Kelly, The Kelly Firm, Hendersonville
Randy Kinnard, Kinnard Clayton & Beveridge, Nashville; Wendy Longmire, Ortale
Kelley, Nashville; James E. Looper, Jr., Hall Booth Smith, P.C., Nashville; Marty
Phillips, Rainey, Kizer, Reviere & Bell, PLC, Jackson; Chris Tardio, Gideon, Cooper &
Essary PLC, Nashville; and Joshua Walker, Associate General Counsel, University of
Tennessee, Knoxville

HIGHLIGHTS: Pre-suit notice and certificate of good faith requirements; review of


causation issues; medical battery and informed consent; choosing and using expert
witnesses; using medical records when examining witnesses; deposition strategies to help
you win at trial; voir dire and jury selection strategies; using technology in the courtroom;
dos and donts from a trial judge; review of recent healthcare liability appellate court
decisions; panel discussions of hot topics in healthcare liability actions; ethical issues
in dealing with medical records; and ethical issues arising during settlement negotiations.

PRICING: $497 (full program) ($427 for any additional attendees from same firm)
*Take $50 off of full program until March 24 (early bird discount)*
$347 (one day only choose either Thursday or Friday)

*You may choose to attend both days or only one day whatever fits your schedule!
For more information, visit www.mleesmith.com/tn-med-mal-2017 or call (800) 727-5257.
3rd annual
Tennessee Business Law Conference
WHEN: Friday, May 19
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Alexander J. Davie, Riggs Davie PLC, Nashville; Charles G. (Chuck)


Fisher, VI, Grant, Kovalinka & Harrison, P.C., Chattanooga; Kelly Frey, Frost Brown Todd
LLC, Nashville; Michael Goode, Stites & Harbison, PLLC, Nashville; Justin Joy, Lewis,
Thomason, King, Krieg & Waldrop, P.C., Memphis; Ralph Levy, Jr., Dickinson Wright
PLLC, Nashville; Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business
Court; and Matthew Lyon, Lincoln Memorial University, Duncan School of Law, Knoxville

HIGHLIGHTS: Overview of the Tennessee Business Court Pilot Project; choosing the
right business entity to match your clients needs; mistakes to avoid in drafting LLC
operating agreements; drafting and negotiating business contracts, including
representations, warranties and indemnification; advantages and drawbacks of using a
Series LLC; tax consequences of limited liability company mergers, conversions, and
reorganizations; overview of the cyber threat landscape for businesses; new options for
raising capital for small companies; and corporate compliance and ethics identifying
and managing common business risks.

PRICING: $377 (full program) ($297 for any additional attendees from same firm)
*Take $50 off until April 7 (early bird discount)*

For more information, visit www.mleesmith.com/tblc or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court rules employee may not assert private right of action
against employer under Tennessees Tip Statute;
Court of Appeals affirms grant of summary judgment to defendant,
owner and operator of restaurant, in customers suit when dishwasher,
who was convicted felon, and waitress, approached customers in
restaurants parking lot to resolve bill dispute, and dishwasher, after
his shift, followed customer and assaulted him at nearby apartment
complex;
Court of Appeals says requirement that disclaimer of implied
warranties be conspicuous is not satisfied by contracts mere reference
to disclaimer in another document, regardless of whether disclaimer is
conspicuously printed in document in which it appears;
Court of Appeals says trial court did not abuse discretion by placing
educational and vocational conditions, i.e., requiring wife to obtain
education degree from Middle Tennessee State University, on award
to wife of rehabilitative alimony;
Court of Criminal Appeals, in two cases, reiterates that signing of
affidavit of complaint before notary public rather than qualified judicial
officer, such as magistrate, does not meet the requirements of TCA 40-6-
203(a) or TRCrP 3, thus rendering affidavit of complaint invalid; and
Attorney general opines that prohibition in proposed bill on pre-
viability abortion after detection of fetal heartbeat and absent medical
emergency is constitutionally suspect.

SUPREME COURT

EMPLOYMENT: In suit by food server/bartender alleging that defendants


failure to pay her and other similarly situated employees all of tips,
gratuities, and/or service charges they earned, and practice of paying portion
of them to non-tipped employees, violated TCA 50-2-107 (Tip Statute),
employee has no private right of action under statute; legislative inaction
doctrine will not be applied to presume that legislature knew of Court of
Appeals interpretation of Tip Statute in Owens v. University Club of
Memphis, 23 TAM 48-5 (Tenn.App. 1998), and acquiesced in it; Owens is
overruled to extent that it is inconsistent with holding that employee has no
private right of action under Tip Statute. Hardy v. Tournament Players
Club at Southwind Inc., 3/8/17, Jackson, Kirby, 23 pages.
http://www.tncourts.gov/sites/default/files/hardy_opinion_opn.pdf

WORKERS COMP APPEALS BOARD

CIVIL PROCEDURE: When injured employee filed request for expedited


hearing on 7/8/16, in 11/28/16 interlocutory order, trial court denied
employees request for benefits, concluding that although employee was
credible witness, she had not offered sufficient expert medical evidence to
support finding that she was likely to prevail at hearing on merits in proving
that her work accident was primary cause of her lumbar condition, employer
thereafter filed motion for summary judgment, arguing that employee could
not establish as matter of law that she was entitled to further workers
compensation benefits, trial courts action in delaying hearing on employers
motion for summary judgment to give employee opportunity to secure
expert medical proof was not against logic or reasoning and did not
constitute abuse of discretion; any such delay should not be indefinite, and
trial court should take care to set hearing on employers dispositive motion
within reasonable time. Hollis v. Komyo America, 3/7/17, Conner, 17 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1743&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1635&context=utk_workerscomp

CIVIL PROCEDURE: When, on day immediately prior to 12/20/16


scheduled trial, trial court held telephonic conference with parties during
which employee requested that trial be continued, employee asserted that she
was unaware employer was relying on misrepresentation defense until post-
discovery mediation conducted on 12/8/16 and that she needed to re-take
deposition of one of her physicians in order to respond to that defense, trial
court did not abuse discretion in granting employees request to continue
trial; party may assert as many defenses as it deems appropriate consistent
with good faith requirements as recently as four days before trial was to
occur, employer had raised at least 20 separate defenses, plus all other
defenses allowed by statute, regulation, case law, or Rules of Civil
Procedure but, when party elects to assert host of wide-ranging defenses, it
runs risk that course of litigation will be delayed or extended by need of
opposing party to prepare for each and every defense. Wright v. Cookeville
Regional Medical Center, 3/8/17, Davidson, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1744&context=utk_workerscomp

COURT OF APPEALS

TORTS: When defendant hired Hale, who was on parole for aggravated
battery and felony firearm convictions, as dishwasher at restaurant, there
was dispute over whether customers had paid bill, Hale and waitress
approached customers in parking lot, dispute about bill was resolved,
customers then left parking lot, Hale, who had clocked out after his shift,
was picked up by his girlfriend, Hale and his girlfriend followed customers
to nearby apartment complex where Hale assaulted one of customers, and
customer filed suit against defendant, owner and operator of restaurant, trial
court properly granted defendant summary judgment; as to vicarious
liability, plaintiff would be unable to prove that Hale was acting within
course and scope of his employment at time of assault; as to direct liability,
defendant negated essential element of plaintiffs claim for negligent
premises security, i.e., duty; defendant should not be held liable for
negligent hiring simply because it hired convicted felon. Fletcher v. CFRA
LLC, 3/8/17, Nashville, Swiney, 20 pages.
http://www.tncourts.gov/sites/default/files/henry_fletcher.pdf
COMMERCIAL LAW: When plaintiff, owner and operator of logging
business, contacted Don Bush d/b/a Bush Forestry Equipment (Bush),
Tennessee TimberPro dealer, about purchasing TimberPro harvester
equipped with Risley harvesting head, Bush referred plaintiff to Woodland
Equipment, Inc. (Woodland), Michigan TimberPro dealer, plaintiff and
Woodland entered into written contract for sale of harvester, harvester was
delivered in 6/10, harvester was destroyed by fire in 5/13, plaintiff filed suit
against Bush alleging that fire was caused by defect in harvesters electrical
system, and complaint was amended to include Woodland as defendant, trial
court properly granted summary judgment to Bush; trial court properly
granted summary judgment to Woodland on plaintiffs claim for breach of
contract and breach of express warranties, but trial court erred in granting
summary judgment to Woodland on plaintiffs claim for breach of implied
warranties of merchantability and fitness as reference to TimberPro warranty
on sales order was not sufficient to notify plaintiff of TimberPro warranty
policy and bind him to its terms; requirement that disclaimer of implied
warranties be conspicuous is not satisfied by contracts mere reference to
disclaimer in another document, regardless of whether disclaimer is
conspicuously printed in document in which it appears. Smith v. TimberPro
Inc., 3/9/17, Jackson, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/smithjwopn.pdf

FAMILY LAW: In case in which father, at time of parties divorce in 2010,


was designated as primary residential parent of parties two children, with
mother being awarded 160 days of unsupervised visitation per year,
including time in summers and on holidays, and father subsequently filed
petition requesting that mothers parenting time be restricted to supervised
visitation only, trial court erred in granting fathers petition and ordering that
mothers limited visitation with children, i.e., 12 hours of visitation every
other week, be supervised; trial court incorrectly applied legal standard
required to modify existing parenting plan; trial courts findings in support
of imposition of supervised visitation 12-year-old daughters (Tessas)
internet usage, Tessas postings on social media sites and uploading makeup
tutorials, mother not telling father directly about Tessas suicide note,
even though clinical psychologist testified that Tessa was not threat to
herself, and mother not following rules during supervised visits, i.e., giving
children gifts on no-gift days and manipulating Tessa into wanting to live
with mother do not rise to level required for trial court to limit mothers
parenting time to 12 hours of supervised visitation every other week and do
not support finding that mother is threat to Tessas well-being. Allen v.
Allen, 3/7/17, Jackson, Gibson, 20 pages.
http://www.tncourts.gov/sites/default/files/allenmarkantonioopn.pdf

FAMILY LAW: In case in which trial court awarded wife rehabilitative


alimony of $2,444 per month for 24 months, provided wife pursued
education degree from Middle Tennessee State University, trial court did not
abuse discretion by placing educational and vocational conditions on award
of spousal support; while statute gives trial courts control of rehabilitative
alimony awards without requiring awards be subject to conditions, it does
not prohibit trial courts from placing conditions on rehabilitative alimony
awards; because wife failed to fulfill conditions placed on alimony award as
set forth in final divorce decree, alimony award terminated by its own terms.
Treadwell v. Lamb, 3/10/17, Nashville, Bennett, 17 pages.
http://www.tncourts.gov/sites/default/files/treadwellj.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL LAW: In case in which defendant was convicted of first
degree premeditated murder, testimony of police officer satisfied
requirement for admission of recordings of defendants jail telephone calls
when officer testified in detail about procedures for inmate to place call,
manner of recording calls onto server, and how calls could be accessed; trial
court did not err by refusing to instruct jury on voluntary intoxication when
no testimony was presented suggesting that defendant was incoherent or that
his ability to form mental state was impacted by marijuana, and defendant
admitted that he shot victim because victim raped [his] girl. State v.
Reynolds, 3/9/17, Knoxville, Ogle, 27 pages.
http://www.tncourts.gov/sites/default/files/reynold_jabariopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was issued


citation of complaint for offenses of DUI and following too closely, officer
prepared affidavit of complaint, which he signed under oath before notary
public, and grand jury subsequently returned presentment against defendant
for two misdemeanor offenses as well as one count of felony reckless
endangerment, trial court properly granted defendants motion to dismiss
misdemeanor charges based on fact that affidavit of complaint was sworn
before notary public rather than qualified judicial officer; signing of affidavit
of complaint before a notary public rather than a qualified judicial officer
did not meet the requirements of [TCA] 40-6-203(a) and [TRCrP] 3, thus
rendering affidavit of complaint invalid; because state did not commence its
prosecution against defendant until after one-year limitations period had
expired, trial court properly found that misdemeanor charges were time-
barred. State v. Helbert, 3/10/17, Knoxville, Woodall, 7 pages.
http://www.tncourts.gov/sites/default/files/helbertjanicedarleneopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was arrested in


8/13, without warrant, for DUI, officer prepared affidavit of complaint,
which he signed under oath before notary public, and in 1/15, grand jury
indicted defendant for DUI, trial court properly granted defendants motion
to dismiss DUI charge based on fact that affidavit of complaint was sworn
before notary public rather than qualified judicial officer; signing of affidavit
of complaint before a notary public rather than a qualified judicial officer
did not meet the requirements of [TCA] 40-6-203(a) and [TRCrP] 3, thus
rendering affidavit of complaint invalid; because state did not commence its
prosecution against defendant until after one-year limitations period had
expired, trial court properly dismissed indictment as time-barred. State v.
Grieco, 3/10/17, Knoxville, Woodall, 7 pages.
http://www.tncourts.gov/sites/default/files/griecolouisopn.pdf

CRIMINAL PROCEDURE: Officer had reasonable suspicion to believe


that defendant was urinating in public and, therefore, committing offense of
public indecency when officer observed defendant in empty parking lot of
public business, standing next to his vehicle and facing away from street,
defendants hands were in front of him at his groin area, and his shoulders
were bent over; it is not necessary that officer actually see defendant
urinating or actually see defendants genitals in order to establish reasonable
suspicion that defendant is committing public indecency through public
urination; while exposure of genitals is element of indecent exposure,
offense of public indecency does not include such element. State v. Fuqua,
3/10/17, Nashville, Woodall, 6 pages.
http://www.tncourts.gov/sites/default/files/fuquabobbyopn.pdf

CRIMINAL PROCEDURE: Post-conviction court erred by allowing


petitioner to proceed simultaneously with TRAP 11 appeal and appeal of post-
conviction courts holding on other post-conviction claims; under Supreme
Court Rule 28, section 9(d)(1)(b)(i), upon determination that petitioner was
deprived of right to request appeal pursuant to TRAP 11, trial court must enter
order granting petitioner delayed appeal, staying post-conviction proceedings
pending final disposition of delayed appeal; case is remanded to allow
petitioner to amend the original petition to challenge any new issues
cognizable in a post-conviction proceeding result[ing] from handling of the
delayed appeal, and should petitioner raise no additional issues, post-
conviction court may, at that point, issue final judgment from which appeal
may be taken. Prewitt v. State, 3/8/17, Nashville, Ogle, 5 pages.
http://www.tncourts.gov/sites/default/files/prewitt_quanya_revell_opn.pdf

TRIAL COURTS

COMMERCIAL LAW: In suit asserting that defendant, former employee


Petcoff, aided by other defendants, breached his fiduciary duties, and caused
plaintiffs trade secrets and confidential and proprietary information to be
taken and used by defendants in Petcoffs new employment with defendants,
defendants motions for summary judgment are denied; facts of Petcoffs
breach of fiduciary duty and disloyalty and inferences as to defendants
motivations at time when Petcoff was still employed by plaintiff, in
combination with plaintiffs decline in revenues when that misconduct
commenced, along with ongoing decline in plaintiffs revenues and enrichment
of defendants at time plaintiffs alleged trade secrets were provided to and
being used by defendants, constitute sufficient facts and evidence to present
genuine issues of material fact on causation; there were genuine issues of
material fact as to whether documents challenged Underwriting Guidelines,
Underwriting Rules, Underwriting Rating and Base Rate, BOP Rater, and
Agent Prospect List constitute trade secrets; plaintiffs independent theory of
breach of fiduciary duty based on violation of plaintiffs handbook creates
sufficient alternative theory with factual disputes that do not depend on
existence of any trade secrets; there are genuine issues of material facts on
whether defendants conduct violated Tennessee Personal and Commercial
Computer Act. Franchise Risk Solutions Inc. v. Conifer Holdings Inc.,
2/14/17, Davidson Chancery, Lyle, 33 pages.
https://www.tncourts.gov/docs/documents/trial-court/biz-court-franchise-risksolutions-inc-v-conifer-holdings-inc-et-al

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When worker was allegedly injured on


campground project when metal walkway gave way and he fell six or seven feet
to ground, worker was not employee of Chambers when worker came and went
on jobs as he pleased, working with Chambers on occasion and others with
available work as well, there were occasions when worker would not have been
able to work if Chambers had not picked him up, worker submitted no
employment application to Chambers, he went through no hiring process in
order to be hired by Chambers, after Chambers secured job, he simply paid
worker and other workers same hourly rate he made in return for their help,
worker supplied his own tools, and if he did not have particular tool, he
borrowed it from Chambers or other workers, there were no set working hours,
and worker was free to work for whomever he wanted, whenever he wanted.
Price v. Chambers, 12/12/16, Kingsport, Addington, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1670&context=utk_workerscomp

ATTORNEY GENERAL OPINIONS

FAMILY LAW: Prohibition in proposed bill on pre-viability abortions after


detection of fetal heartbeat and absent medical emergency is constitutionally
suspect; other changes in proposed bill requiring pregnant woman, before
abortion and absent medical emergency, to obtain ultrasound testing
consistent with standard medical practice and to be given specified written
information by her physician and allowing post-viability abortion to be
performed if there is medical emergency and if such abortion is performed
by licensed physician and in licensed hospital are constitutionally
defensible. Attorney General Opinion 17-15, 3/1/17, 4 pages.
http://www.tn.gov/assets/entities/attorneygeneral/attachments/op17-015.pdf

GOVERNMENT: Tenn. Const. Art. XI, Sec. 5, does not authorize use of
net lottery proceeds in Tennessee to pay for Advanced Placement
examination fees for high school students. Attorney General Opinion 17-10,
2/15/17, 4 pages.
http://www.tn.gov/assets/entities/attorneygeneral/attachments/op17-010.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