TAM-BYTES

June 1, 2015

Vol. 18, No. 22

2015 TAM CLE CALENDAR

Webinars

Qualifying for TennCare and VA Benefits: Use of Irrevocable

Trusts, 60-minute webinar presented by Alex M. Taylor, with Kennerley, Montgomery & Finley in Knoxville, on Wednesday, June 24, at

10 a.m. (Central), 11 a.m. (Eastern).

*Earn 1 hour of GENERAL credit

Life Care Plans: How to Defend a Claim for Future Medical

Expenses, 60-minute webinar presented by John Alexander, with Rainey, Kizer, Reviere & Bell in Jackson, on Thursday, June 25, at 10 a.m.

(Central), 11 a.m. (Eastern).

*Earn 1 hour of GENERAL credit

Proving Defamation from the Use of Social Media: A Primer for

Attorneys, 60-minute webinar presented by Marcus Chatterton, with Balch & Bingham in Birmingham, on Tuesday, June 30, at 10 a.m.

(Central), 11 a.m. (Eastern).

*Earn 1 hour of GENERAL credit

Maximizing Uninsured Motorist Coverage in Tennessee from the

Plaintiff's Perspective, 60-minute webinar presented by Laura Baker, with the Law Offices of John Day in Brentwood, on Wednesday, July 8, at

10 a.m. (Central), 11 a.m. (Eastern).

*Earn 1 hour of GENERAL credit

Tennessee Landlord and Tenant Law: Evictions, Court, and

Litigation, 60-minute webinar presented by Joshua Kahane, with Glankler Brown in Memphis, on Thursday, July 16, at 2 p.m. (Central), 3

p.m. (Eastern).

*Earn 1 hour of GENERAL credit

Tennessee's New Business Court is Now Open for Business, 60-

minute webinar presented by Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court, on Thursday, July 23, at 2 p.m. (Central), 3 p.m.

(Eastern).

*Earn 1 hour of GENERAL credit

For more information or to register for any of our CLE events, call (800) 727-5257 or

visit us at www.mleesmith.com

On-Site Event

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 25 WHERE: Nashville Nashville School of Law CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and

1 hour of DUAL credit

FACULTY: 16th

Judicial District Circuit Judge Mark Rogers; Laura

Baker, Law Offices of John Day; Brandon Bass, Law Offices of John Day;

Philip N. Elbert, Neal & Harwell; Michael H. Johnson, Howard, Tate,

Sowell, Wilson, Leathers & Johnson; Chris Tardio, Gideon, Cooper &

Essary; and Bryan K. Williams, Gullett Sanford Robinson & Martin

HIGHLIGHTS: Review of recent personal injury cases; constitutionality

of caps on damages; recent developments in healthcare liability pre-suit notice and certificate of good faith requirements and ex parte

communications; trial judges dos and donts for arguing for or against a motion for summary judgment; handling complex subrogation and lien

issues; social media, the internet, and ESI challenges; effective direct

examination, cross-examination, and redirect; deposition strategies preparing for deposition, preparing the witness, and taking the deposition;

and interplay of ethics, evidence, and experts.

To learn more or to register, visit: www.mleesmith.com/tn-personal-injury-law

IN THIS WEEKS TAM-Bytes

Supreme Court holds requirement of TCA 29-26-122(d)(4) that certificate of good faith disclose number of prior violations of statute

does not require disclosure of absence of any prior violations of statute;

In termination of parental rights case, Court of Appeals says that while juvenile court did not comply with statute in timeliness of entering its

order, there is no specified remedy such as remand required, but

admonishes trial courts and parties to adhere to statutes;

Court of Criminal Appeals says state should not have been permitted to argue that defendants conduct, i.e., convicted felon for drug offense arming himself with weapon prior to shooting, standing alone, could

have formed basis for conclusion that defendant was engaged in

unlawful activity under self-defense statute, requiring duty to retreat, but holds that error was harmless given overwhelming evidence that

defendant was engaged in unlawful activity at time of offenses;

Court of Workers Comp Claims holds, following expedited hearing, that employee whose kneecap popped out from socket when she, while

completing paperwork at her desk, stood up to go to copier, did not

establish that her injury arose primarily out of her employment; and

General Assembly removes authority of local governments to prohibit carrying of handguns in parks.

SUPREME COURT

TORTS: Requirement of TCA 29-26-122(d)(4) that certificate of good

faith disclose number of prior violations of statute does not require

disclosure of absence of any prior violations of statute. Davis ex rel. Davis

v. Ibach, 5/29/15, Jackson, Bivins, 4-0, 5 pages. http://www.tncourts.gov/sites/default/files/davistopn_1.pdf

COURT OF APPEALS

WORKERS COMPENSATION: When employee fell at work and suffered injuries, employee began receiving medical treatment, she

subsequently relocated to Minnesota and made request to employer that she

be provided second panel of physicians in order to continue her treatment,

employer denied request, at employees request, workers compensation specialist from Tennessee Department of Labor and Workforce

Development ordered employer to provide second panel of physicians,

employer requested and received administrative review of specialists order, Department affirmed order, employer filed petition for writ of certiorari in

chancery court pursuant to TCA 27-8-101 asserting that Department

exceeded its authority by ordering employer to provide second panel of

physicians and physician outside of Tennessee, and trial court held that

Department did not exceed its authority in ordering panel of physicians,

trial court lacked subject matter jurisdiction when employer did not exhaust

benefit review conference process. Goodyear Tire & Rubber Co. v. Davis,

5/26/15, MS, Dinkins, 7 pages. http://www.tncourts.gov/sites/default/files/goodyeartirerubbervdavisk.opn_.pdf

COMMERCIAL LAW: When plaintiff entered into two contracts for

defendant to repair and refurbish six of plaintiffs pipe bending machines, which machines are used in plaintiffs business of designing and manufacturing automobile exhaust systems, plaintiff filed suit alleging that,

as result of defendants failure to timely repair and deliver machines, which are also known as benders, plaintiff incurred lost profits of $486,166, and trial court dismissed plaintiffs negligent misrepresentation and Tennessee Consumer Protection Act claims but granted plaintiff judgment for $11,840

on its breach of contract claim, evidence did not preponderate against trial

courts judgment declining to award plaintiff lost profits as part of its damages when trial court found that other factors likely caused losses,

including sharp general economic downturn in 2008, plaintiffs labor problems and costs associated with its plant relocation, and plaintiffs actions that resulted in delays getting California benders repaired and in

production. Borla Performance Industries Inc. v. Universal Tool &

Engineering Inc., 5/26/15, ES, Susano, 27 pages. http://www.tncourts.gov/sites/default/files/borla_v_ute_.pdf

FAMILY LAW: In termination of parental rights case, juvenile court

failed to comply with TCA 36-1-113(k) by not entering order as required

within 30 days of conclusion of termination hearing, but remand is not

appropriate remedy for this non-compliance with statute and would serve

no purpose; while juvenile court did not comply with statute in timeliness

of entering its order, there is no specified remedy such as remand required,

but trial courts and parties are admonished to adhere to statutes enacted by

General Assembly. In re Autumn L., 5/26/15, ES, Swiney, 11 pages. http://www.tncourts.gov/sites/default/files/inreautumnlopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision to award wife alimony in futuro of $1,900 per month when parties had been

married for 29 years, wife was 63 years old at time of divorce, wife had

several significant health problems, wifes earning capacity was relatively small when compared to husbands wife worked as substitute teacher, while husband had been employed as letter carrier for U.S. Postal Service for 26

years and wife had made significant intangible contributions to marriage, including her efforts as homemaker and as mother to parties two children. Inman v. Inman, 5/26/15, ES, Susano, 9 pages. http://www.tncourts.gov/sites/default/files/inman_v_inman.pdf

CRIMINAL PROCEDURE: Defendant, 14-year-old juvenile, was placed

on probation in 11/11 as delinquent based upon his guilty plea to possession

of marijuana, his probation was extended multiple times during 2012 and

2013 for violating terms of his probation, and defendant pled guilty in 4/14

to three counts of violating his probation, criminal court did not err in

committing defendant to custody of Department of Childrens Services (DCS) for indefinite term after finding defendant delinquent for committing

offenses of resisting arrest, vandalism, and admitting to three counts of

violating his probation; TRJP 35 provides that if court finds by

preponderance of evidence that child has violated probation, court may

[m]ake any other disposition which would have been permissible in the original proceeding. In re Dontavis K.W., 5/26/15, ES, Swiney, 7 pages. http://www.tncourts.gov/sites/default/files/inredontaviskwopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of

aggravated assault, unlawful possession of weapon, and misdemeanor

reckless endangerment, although state should not have been permitted to

argue that defendants conduct, i.e., convicted felon for drug offense arming himself with weapon prior to shooting, standing alone, could have formed

basis for jury to conclude that defendant was engaged in unlawful activity for purposes of self-defense statute, TCA 39-11-611(b), requiring duty to

retreat, jury was charged that justifiable self-defense was defense to

possession charge and was properly allowed to consider all of defendants conduct leading up to shooting in determining whether defendant was

engaged in unlawful activity and, therefore, had duty to retreat under TCA 39-11-611(b); given overwhelming evidence that defendant was

engaged in unlawful activity at time of offenses, i.e., dealing drugs and all of his attendant conduct surrounding that transaction, and in light of

jurys decision to find defendant guilty of unlawful possession of weapon with proper instructions, any error in permitting states argument was harmless; trial judges instruction on self-defense fairly submitted legal issues, including that one only has duty to retreat if engaged in unlawful

activity, and did not mislead jury as to applicable law. State v.

Montgomery, 5/28/15, Knoxville, Thomas, 18 pages. http://www.tncourts.gov/sites/default/files/montgomerydeantyopn.pdf

CRIMINAL PROCEDURE: In case in which defendant, who

impregnated his wifes younger sister (C.E.) when she was between 15 and 17 years old, was convicted of statutory rape and placed on Sex Offender

Registry, after defendant resumed his relationship with C.E. and began

living with C.E. and her 5-year-old daughter from previous relationship, he

was convicted of violating sexual offender registry residency restriction,

TCA 40-39-211, and defendant claimed that because he would not have

been in violation of statute had he married C.E. and been step-parent of C.E.s 5-year-old daughter, statute infringes on his fundamental liberty interests, rights to privacy, rights to parenting and rights to marry, statute is not unconstitutional as applied to defendant in that statute does not

compel defendant to marry C.E. State v. Driver, 5/27/15, Jackson, Wedemeyer, 15 pages. http://www.tncourts.gov/sites/default/files/driverjhopn.pdf

PUBLIC CHAPTERS

GOVERNMENT: Removal of authority of local governments to prohibit

carrying of handguns in parks. 2015 PC 250, effective 4/24/15, 3 pages. http://www.tn.gov/sos/acts/109/pub/pc0250.pdf

GOVERNMENT: Creation of lifetime handgun carry permit. 2015 PC

281, effective 7/1/15, 3 pages. http://www.tn.gov/sos/acts/109/pub/pc0281.pdf

CRIMINAL LAW: Requirements for collection of evidence, testing, and

handling of sexual assault evidence and hold kits. 2015 PC 253, effective

4/24/15, 4 pages. http://www.tn.gov/sos/acts/109/pub/pc0253.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, senior processing coordinator, testified that, near lunch hour, she was completing paperwork

at her desk and then stood up, turned left to my left, to go to the copier I believe, and my left kneecap popped out from the socket dislocated, employee failed to meet her burden of establishing that her injury arose

primarily out of her employment, and injury was idiopathic in nature, when

employee failed to identify peculiar or additional hazard related to her

employment, incident could have happened when employee stood up from

chair in settings other than work, and employees mere presence at work is insufficient to classify injury as work-related; employers assertion that two prior dislocations indicate this type of injury is personal to employee is

persuasive, and while arguably, employees duties might include accessing forms to be filled out or to reach above her head to retrieve forms, her

testimony failed to specify her job duties. Haynes v. DCI Donor Services,

2/19/15, Switzer, 7 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1058&context=utk_workerscomp

WORKERS COMPENSATION: When employee injured his right elbow at work on 7/28/14, authorized treating physician assigned temporary

restrictions, employer accommodated temporary restrictions, and authorized

treating physician released employee to return to work full duty without

restrictions on 8/20/14, insufficient evidence exists at this time to prove that

employee is entitled to temporary disability benefits; although employee

may require EMG/NCV study, this need does not demonstrate that

employee is unable to work. Shelton v. Performance Food Group, 2/23/15,

Switzer, 5 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1059&context=utk_workerscomp

ATTORNEY GENERAL OPINION

CRIMINAL LAW: TCA 39-17-307, which makes it crime to obstruct

highway or other passageway, would not be unconstitutionally vague if

certain amendments to proposed bill were enacted. Attorney General

Opinion 15-46, 5/27/15, 4 pages. http://www.tn.gov/attorneygeneral/op/2015/op15-46.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

2015 TAM CLE CALENDARWebinarsOn-Site Event

IN THIS WEEKS TAM-BytesSUPREME COURTCOURT OF APPEALSCOURT OF CRIMINAL APPEALSPUBLIC CHAPTERSCOURT OF WORKERS COMPENSATION CLAIMSATTORNEY GENERAL OPINION