TAM-BYTES

June 26, 2017

Vol. 20, No. 26

TAM Webinars

Key Elements of Wills in Tennessee, 60-minute webinar presented

by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, July 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-072717
or call us at (800) 727-5257.

Tennessee Series LLC: Client Counsel Best Practices for Liability

Separation, 60-minute webinar presented by Michael Goode, with
Stites & Harbison in Nashville, on Wednesday, August 2, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/series-LLC-080217
or call us at (800) 727-5257.

Tennessee Probate Case Law and Legislative Update: What

Attorneys Need to Know, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, August 3,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/probate-080317
or call us at (800) 727-5257.

Parental Relocation in Tennessee: The Impact of the Aragon

Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.
2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.

Trump and Immigration: The Essential Attorney Update, 60-minute

webinar presented by Terry Olsen, with Olsen Law Firm in Chattanooga,
on Wednesday, August 23, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-082317
or call us at (800) 727-5257.

Proving Damages in Tennessee: How to Present Evidence and

Command Jury Attention, 60-minute webinar presented by John
Dunlap, Memphis attorney, on Thursday, August 24, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-082417
or call us at (800) 727-5257.

Divorce in Tennessee: Essential First Steps for Attorneys, 60-

minute webinar presented by Kevin Shepherd, with Shepherd and
Associates PC in Maryville, on Thursday, August 31, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/divorce-083117
or call us at (800) 727-5257.

On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21-22

WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL
 SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties);
Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge
Walter Kurtz, former Davidson County Circuit judge/former Tennessee senior judge;
Laura Baker, Law Offices of John Day, Brentwood; Brandon Bass, Law Offices of
John Day, Brentwood; J. Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett,
Batson Nolan, Clarksville; James Exum, Leitner, Williams, Dooley & Napolitan,
Chattanooga; Steve Gillman, Pryor, Priest, Harber, Floyd & Coffey, Knoxville; Michael
H. Johnson, Howard, Tate, Sowell, Wilson, Leathers, & Johnson, Nashville; Mary
Ellen Morris, Kinnard, Clayton & Beveridge, Nashville; Bryan Moseley, Moseley &
Moseley, Murfreesboro; William J. Rieder, Spears, Moore, Rebman & Williams,
Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile

insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

12th annual
Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn

Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Eskind Moses, MTR
Family Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville;
 Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville
attorney; Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black
Morgan & Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District
(Greeene, Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;

David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear,
Newman & Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County;
Kevin Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel,
Board of Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital

property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

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

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Court of Appeals reverses grant of summary judgment to county

emergency communications district and city police department in
wrongful death action in which plaintiff alleged defendants refused
to send help when plaintiff called to report that her daughter was
making suicidal threats and, as result, daughter committed suicide
later same night;
Court of Appeals, in suit against attorney and his law firm who, in
preparing closing documents, failed to procure release of first lien and
to procure title insurance, reverses finding against defendants on
Tennessee Consumer Protection Act claim, but affirms award against
defendants on negligent misrepresentation claim;
Court of Appeals, in affirming termination of parental rights on basis of
wanton disregard for childs welfare, says father need not know with
100% certainty that he is childs father for his actions to potentially
 constitute wanton disregard for childs welfare father only need know
that he had sex with childs mother and that she became pregnant;
In case in which physician, whose medical staff privileges were
terminated by hospital, sued hospital, alleging that hospital acted in
bad faith and with malice during peer review process, Court of Appeals
says that Healthcare Quality Improvement Acts peer review privilege
under TCA 68-11-272(c)(1) may not be waived and that statute, as
applied to facts of case, does not violate separation of powers; and
Court of Criminal Appeals affirms conviction for educational neglect
when school attendance records and testimony at trial revealed that
children had not attended school for almost one year, and children
were not enrolled in home school program.

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employees, residents of Johnson

City, Tenn., were employed by employer, Arkansas company headquartered
in Russellville, Ark., employees, team truck drivers, were injured in motor
vehicle accident near Shreveport, La., employer and its insurer accepted
employees workers comp claims as compensable and paid benefits under
Arkansas law, employees filed Request for Benefit Review Conference with
Tennessee Department of Labor and Workforce Development, no additional
action occurred in Tennessee, benefits continued to be paid according to
Arkansas law, after administrative process was exhausted, employee filed
suit in Tennessee against employer and insurer requesting compensation
benefits under workers comp laws of Tennessee, trial court did not err in
determining it had subject matter jurisdiction when employees were
residents of Tennessee at time of injury and there was substantial connection
between Tennessee and employer-employee relationship; evidence did not
preponderate against trial courts finding that employees took no affirmative
action to obtain or consent to receive benefits under Arkansas law. Russell v.
Transco Lines Inc., 6/20/17, Knoxville, McClarty, 13 pages.
http://www.tncourts.gov/sites/default/files/us_20170620073113.pdf

COURT OF APPEALS

TORTS: In wrongful death action in which plaintiff, decedents mother,

alleged that county emergency communications district (ECD) and city
police department refused to send help when plaintiff called to report that
her daughter was making suicidal threats and that, as result, her daughter
committed suicide later same night, trial court erred in granting defendants
summary judgment; defendants were not entitled to summary judgment on
basis that daughters suicide was superseding, intervening cause when
assuming that, as plaintiff asserts, she alerted defendants that daughter was
threatening suicide and both ECD and city police department refused to send
help; special duty exception to public duty doctrine applied when evidence,
viewed in light most favorable to plaintiff, was sufficient to permit a
finding [by the trier of fact] that [the defendants] consciously disregarded a
substantial and unjustifiable risk of such a nature that its disregard
constituted a gross deviation from the standard of ordinary care. Ramsey v.
Cocke County, 6/23/17, Knoxville, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/ramsey_v_cocke_county.pdf

COMMERCIAL LAW: When plaintiffs entered into contract to purchase

undeveloped lot in planned unit development, defendants attorney and his
law firm prepared closing documents, including warranty deed and
settlement statement, warranty deed included language that property was
unencumbered and settlement statement provided for payoff of first
mortgage and for purchase of title insurance, and plaintiffs later discovered
that defendants failed to procure release of first lien and also failed to
procure title insurance, property was foreclosed, trial court erred in finding
defendants liable under TCPA; TCPA does not apply to defendants who
were engaged in practice of law in preparation of closing documents; since
defendants were practicing law in relation to preparation of closing
documents, in the course of business, profession or employment criterion
for negligent misrepresentation claim is met; because plaintiffs were denied
benefit of their bargain, i.e., ownership in land and title insurance,
reasonable measure of damages, in absence of any countervailing proof,
would be to put them in same position they would have been in had they
never entered into contract for purchase of property, and this is what trial
court did by awarding them purchase price, closing costs, and prejudgment
interest. Faerber v. Troutman & Troutman P.C., 6/22/17, Knoxville,
Armstrong, 14 pages.
http://www.tncourts.gov/sites/default/files/faerber_v_troutman.pdf

FAMILY LAW: In termination of parental rights case, evidence supported

termination of fathers parental rights to his daughter on ground of wanton
disregard for childs welfare when father knew in 5/15 that mother was
pregnant with child and that he might be father, and father even paid for
mother to begin drug treatment, but, in spite of this knowledge, father
proceeded to incur number of drug charges and federal gun possession
charge in 6/15, resulting in his incarceration, and also violated probation
imposed on previous charge; although fathers pre-incarceration conduct
comprised single incident which occurred only three weeks after learning of
mothers pregnancy, certain conduct may be of such magnitude that it
constitutes wanton disregard for childs welfare even if it is single incident;
father need not know with 100% certainty that he is childs father for his
actions to potentially constitute wanton disregard for childs welfare father
only need know that he had sex with childs mother and that she became
pregnant. In re Jase P., 6/21/17, Knoxville, Swiney, 16 pages.
http://www.tncourts.gov/sites/default/files/inrejasep._opinion.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

determination that material change in circumstances had occurred
warranting modification of parties residential parenting schedule with
couples 17-year-old son when mothers attempts to exercise her co-
parenting time were thwarted either by fathers scheduling of activities of
childs desire to remain with father; evidence did not preponderate against
trial courts decision to reduce mothers co-parenting time with child to 90
days from 125 days when trial court crafted plan that adequately represented
childs best interest, while also ensuring that mother was given specific and
consistent co-parenting time before child reached age of majority. Kennedy
v. Kennedy, 6/23/17, Nashville, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/kennedy.phillip.opn_.pdf

GOVERNMENT: In case in which physician, whose medical staff

privileges were terminated by Summit Medical Center, sued hospital,
alleging that hospital acted in bad faith and with malice during peer review
process, hospital filed motion for summary judgment asserting that
physicians anticipated evidence was confidential, privileged, and
inadmissible under Healthcare Quality Improvement Act (HCQIA) because
it was derived from activity of Quality Improvement Committee (QIC), at
same time, hospital filed motion in limine to exclude all records of quality
improvement activity pursuant to evidentiary peer review privilege under
TCA 68-11-272(c)(1), and trial court ruled that peer review privilege could
not be waived by hospital and that TCA 68-11-272(c)(1) violated separation
of powers provisions because it deprived court of its inherent authority to
make evidentiary decisions affecting the heart of the case, trial court
correctly ruled that HCQIA peer review privilege under TCA 68-11-
272(c)(1) may not be waived; peer review privilege was intended to benefit
entire peer review process, not simply individuals participating in process,
thus, no individual, including hospital, can be holder of privilege; because
General Assembly enacted privilege in furtherance of public policy of
Tennessee, privilege achieves that objective by encouraging candor within
hospitals quality improvement process, and privilege is reasonable and
workable within framework of evidentiary rules already recognized by
judiciary, and as such, TCA 68-11-272(c)(1), as applied to facts of this case,
does not violate separation of powers provisions in Tennessee Constitution.
Pinkard v. HCA Health Services of Tennessee Inc., 6/21/17, Nashville,
Clement, 17 pages.
http://www.tncourts.gov/sites/default/files/pinkard.john_.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of DUI

when officer observed defendant driving vehicle, upon approaching
defendant in his vehicle, officer smelled alcohol on defendant and noticed
that his eyes were bloodshot, defendant failed two field sobriety tests, and
defendant admitted to officer that he had been drinking alcohol that day;
mere fact that evidence brought out at trial is not introduced as exhibit does
not render evidence improper for use by jury defendant alleged that
although video of stop of his vehicle was shown to jury, video was not
admitted into evidence because it was never made exhibit; trial courts
imposition of $350 fine on defendant was improper given fact that Tenn.
Const., Art. VI, Sec. 14, prohibits assessment of fine in excess of $50 unless
imposed by jury; trial courts imposition of fine is reversed, and case is
remanded for empaneling of jury to fix defendants fine. State v. Jaco,
6/20/17, Nashville, Williams, 10 pages.
http://www.tncourts.gov/sites/default/files/jaco_stephenopn.pdf

CRIMINAL LAW: Evidence was sufficient to convict defendant of four

counts of educational neglect, pursuant to TCA 49-6-3001 to 49-6-3006, for
failing to cause his four children to attend school for period of 17 days when
school attendance records and testimony at trial revealed that children had
not attended school for almost one year, neither defendant nor his wife
provided school with formal excuse accounting for their childrens absences,
and although defendants wife testified that children were being home-
schooled, she acknowledged that children were not enrolled in home school
program and that she had not notified local school director as required by
law. State v. Inmon, 6/22/17, Nashville, McMullen, 5 pages.
http://www.tncourts.gov/sites/default/files/inmon_danielopn.pdf

CRIMINAL PROCEDURE: Although jurors may be excluded for cause if

they have formed opinion which will prevent impartiality, [j]urors need not
be totally ignorant of the facts of the case on which they sit [and even] the
formation of an opinion on the merits will not disqualify a juror if [the juror]
can lay aside [his or her] opinion and render a verdict based on the evidence
presented. State v. Thornton, 6/22/17, Nashville, Woodall, 25 pages.
http://www.tncourts.gov/sites/default/files/thorntonrobertg_0.pdf

CRIMINAL PROCEDURE: Post-conviction court erred by granting post-

conviction relief based on ineffective assistance of counsel; post-conviction
court erred by concluding that trial counsel was ineffective in failing to file
motion to suppress evidence of toxicology results of petitioners blood
showing that petitioner had cocaine in his blood when there was no proof of
what evidence could have been developed in pretrial Ferguson hearing;
when petitioner did not submit Traffic Crash Report or call officer as
witness to explain information in report, it was pure speculation for post-
conviction court to conclude that had trial counsel used report to impeach
testimony of officer, it would have raised reasonable doubt that petitioner
acted recklessly or was intoxicated; post-conviction court erred in finding
trial counsel was ineffective in failing to present expert witness to impeach
toxicologist called by state when petitioner did not present expert witness at
evidentiary hearing; post-conviction court erred in finding trial counsel was
ineffective in failing to present evidence of petitioners bipolar manic
depression when none of medical records or testimony of witness to
interpret records was presented at evidentiary hearing; post-conviction court
erred in finding that trial counsel was ineffective in failing to challenge
sufficiency of evidence in first appeal when, evidence submitted at trial,
taken in light most favorable to state, was sufficient to sustain conviction of
vehicular assault and conviction of reckless aggravated assault, which was
ultimately merged with vehicular assault. Stewart v. State, 6/20/17,
Nashville, Woodall, 31 pages.
http://www.tncourts.gov/sites/default/files/stewartcharlesbradfordopn_0.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employee, merchandise handler, is not

likely to prevail at hearing on merits regarding notice when employee, by
her own admission, did not tell supervisor that she injured her back while
reaching over to grab box on 5/26/16, she merely told supervisor that she
was in pain, employee did not convey to employers human resources
manager on 5/26/16 or after 5/31/16 that work incident caused her pain,
employee admitted she chose workers compensation over short-term
disability, and employee first told employer her back pain was work related
on 8/2/16, well past timeframe required under Workers Compensation Law.
Nowman v. Gap Inc., 4/4/17, Nashville, Switzer, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1773&context=utk_workerscomp

WORKERS COMPENSATION: When employee at convenience store

testified that cashier on duty, David, confronted him and caused him to
suffer dislocation of his knee, preponderance of evidence did not establish
alleged injury arose primarily out of employees employment when at
expedited hearing, employee testified David got in his face over Davids
apparent rejection by employees sister, at compensation hearing, employee
added that he inserted himself into what he considered improper interaction
between David and female customers, and even assuming employees
elaboration at compensation hearing to be true, there was no relationship
between assault and work. Lawrence v. Stop N Shop, 4/5/17, Jackson,
Phillips, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1774&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