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Whether Taylor v. Butler adopted per se rule that any degree of non-mutuality of remedies in arbitration provision in adhesion contract renders provision unenforceable, whether trial court's suspicion that witness's claim of memory loss is feigned or exaggerated defeats inconsistent nature of prior statement, and whether Department of Revenue may assess unremitted sales and use taxes, interest, and penalties notwithstanding order of criminal restitution fee for evasion of same taxes, and more from Tennessee appellate courts.

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  • TAM-BYTES

    June 8, 2015

    Vol. 18, No. 23

    2015 TAM CLE CALENDAR

    Webinars

    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 Taylor v. Butler did not adopt per se rule that any degree of non-mutuality of remedies in arbitration provision in

    adhesion contract renders provisions unconscionable and

    unenforceable, and hence, ruling in Taylor is not preempted by

    federal law;

    Supreme Court says trial courts suspicion that witnesss claim of memory loss is feigned or exaggerated does not defeat inconsistent

    nature of prior statement, and even when court admits witnesss prior hearsay statements as substantive evidence, and witness claims at

    trial not to remember information contained within statements,

    Confrontation Clause is not violated when defendant has opportunity

    to cross-examine witness;

  • Workers Comp Appeals Board, in affirming trial courts order requiring employer to provide panel of orthopedic physicians and

    initiate temporary disability benefits, says act of employee in re-

    entering delivery van after relieving herself had rational connection

    to her work activities sufficient to establish casual connection

    between her injury and risk inherent to her work;

    In slip and fall case, Court of Appeals rules duty of care owed by owner of business did not extend to height variation between level of

    concrete parking landing and parking lot because it did not pose

    unreasonable risk and was open and obvious condition;

    In health care liability action, Court of Appeals rules that parties intended execution of arbitration agreement upon patients admission to nursing facility to constitute healthcare decision and that because

    patients daughter did not have authority under power of attorney to make healthcare decisions for patient, daughter did not have authority

    to bind decedent to arbitration;

    Court of Appeals says Department of Revenue may assess unremitted sales and use taxes, interest, and penalties notwithstanding order of

    criminal restitution for evasion of same taxes;

    Court of Appeals, in case in which parties were divorced after 19-year marriage, rules trial court erred in awarding wife alimony in

    futuro of $4,000 per month when 43-year-old wife, who has Masters degree in Science and Social Work, is capable of being rehabilitated

    to high income in future, making long-term support unnecessary;

    Court of Criminal Appeals reduces Class D felony evading arrest conviction to Class E felony evading arrest when state failed to

    present any proof from which rational trier of fact could find that

    defendant created risk of death or injury to innocent bystanders or other third parties; and

    Court of Workers Compensation Claims says physician assistants causation opinion does not meet evidentiary standards imposed by

    July 1, 2014, amendment which utilizes term physician when describing expert opinion necessary to establish whether injury arose

    primarily out of and in course and scope of employment.

    SUPREME COURT

    COMMERCIAL LAW: When parties executed installment contract for

    manufactured home that included arbitration provision under which sellers

    retained right to seek relief in judicial forum for limited purposes, after

    taking possession of home, buyer filed suit against sellers for breach of

  • contract, and sellers filed motion to compel arbitration, trial court erred in

    holding that sellers retention of judicial forum for limited purposes rendered arbitration agreement unconscionable; Taylor v. Butler, 142 SW3d

    277 (Tenn. 2004), did not adopt per se rule that any degree of non-mutuality

    of remedies in arbitration provision in adhesion contract renders provision

    unconscionable and unenforceable, and hence, ruling in Taylor is not

    preempted by federal law; it is not necessary or prudent to overrule or

    modify ruling in Taylor at this time; arbitration agreement at issue was not

    unreasonably favorable to sellers or beyond the reasonable expectations of an ordinary person, or oppressive or unconscionable when sellers articulated reasonable business justification for carve-out for foreclosure

    procedure on manufactured home. Berent v. CMH Homes Inc., 6/5/15,

    Knoxville, Kirby, unanimous, 21 pages. http://www.tncourts.gov/sites/default/files/berentra.opn_.pdf

    EVIDENCE: In case in which jury convicted defendant of second degree

    murder on Count 1 of indictment, but on Count 2, jury acquitted defendant

    of second degree murder and convicted him instead of reckless homicide,

    jury verdicts were inconsistent, but because inconsistent verdicts are not

    basis for relief, defendants convictions are affirmed; principles of double jeopardy do not require that defendants second degree murder conviction be merged into his reckless homicide conviction; reckless homicide is lesser

    included offense of second degree murder; for purposes of TRE 803(26),

    prior statement about events that witness claims at trial to be unable to

    remember is inconsistent with witnesss trial testimony; trial courts suspicion that trial witnesss claim of memory loss is feigned or exaggerated does not defeat inconsistent nature of prior statement given fact

    that trial courts lack tools to determine conclusively whether witness is

    being entirely honest about extent of his or her recollection; even when trial

    court admits witnesss hearsay statements as substantive evidence and witness claims at trial not to remember information contained within

    hearsay statements, Confrontation Clause is not violated when defendant

    has opportunity to cross-examine witness at trial. State v. Davis, 6/3/15,

    Jackson, Bivins, concurrence by Lee, 39 pages. http://www.tncourts.gov/sites/default/files/davism.con_.opn_.pdf

    WORKERS COMP APPEALS PANEL

    WORKERS COMPENSATION: When employee injured his back at work in 2/08, he was diagnosed with small disc herniation, L4-5 discectomy

    was performed, employee returned to work, settlement was approved on

    6/8/09 providing that he would continue to receive reasonable and

  • necessary medical benefits, treating physician (Dr. Bolt) recommended in

    3/13 single-level fusion of L4 and L5 vertebrae, employer submitted

    recommendation to utilization review (UR) provider, UR provider twice

    declined to approve proposed surgery on grounds that it was not medically

    necessary because guideline criteria [had] not been met, employee appealed to Department of Labor and Workforce Development, Department

    affirmed decision of UR provider, and employee filed motion to compel

    medical treatment, trial court should have applied de novo standard in

    reviewing case; trial courts decision is reversed as spinal fusion surgery was reasonably necessary for employees treatment when Office of Disability Guidelines (ODG) did not recommend spinal fusion for patients

    who have had less than six months of failed conservative care, absent

    structural instability, ODG may support recommendation of spinal fusion

    for patients who have had more than six months of conservative care, and

    Bolt recommended surgery on 6/12/13 at which point employee had been

    receiving conservative care since 12/15/08. Shelton v. Joseph Construction

    Co., 6/3/15, Nashville, Bivins, 11 pages. http://www.tncourts.gov/sites/default/files/sheltonrandy.opnjo_.pdf

    WORKERS COMP APPEALS BOARD

    WORKERS COMPENSATION: When employee, while working for temporary agency at company delivering packages, was delivering

    packages in rural area, because of medical condition, she was taking

    medication which caused frequent urination, while making delivery in rural

    area, she became compelled to relieve herself outdoors near customers driveway, customers garage door began to open, and as she hurried to re-enter her delivery van, employee twisted and suffered pain and other

    symptoms in her left knee, employee presented sufficient evidence to

    support trial courts conclusion that she is likely to prevail at hearing on merits, is entitled to panel of orthopedic physicians, and is entitled to

    temporary partial disability benefits; act of re-entering delivery van had

    rational connection to employees work activities sufficient to establish causal connection between her injury and risk inherent to her work. Nance

    v. Randstad, 5/27/15, Conner, 20 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1099&context=utk_workerscomp

    http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1085&context=utk_workerscomp

    WORKERS COMPENSATION: In case in which employee stepped from scissor lift on 1/10/14 while in course of his employment, injuring his

    knee, and returned to doctor on 8/26/14 with complaints of right knee pain and swelling for 1 week, evidence did not preponderate against trial courts conclusion that employee failed to demonstrate that 8/11/14 work

  • incident caused new and distinct injury or advanced severity of pre-existing

    right knee injury when although doctors 10/21/14 report stated that employee returns today in followup of his right tibial stress fracture, 9/22/14 MRI report identifies [s]tress reaction edema and not stress fracture, while impression included in doctors 9/23/14 report includes [s]tress injury right medial tibial plateau, and plan states that employee has frequent signs of stress reaction and worsening chondromalacia, medical records do not otherwise indicate or suggest that employee

    sustained acute stress fracture of medial tibial plateau, and more importantly, none of medical records address cause of stress reaction/injury

    or worsening chondromalacia; these conditions could be natural progression

    of 1/14 injury and unrelated to alleged 8/14 incident. Bradshaw v. Jewell

    Mechanical LLC, 6/4/15, Hensley, 20 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1100&context=utk_workerscomp

    http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1087&context=utk_workerscomp

    COURT OF APPEALS

    TORTS: When plaintiff walked from Radio Shack to seamstress shop, which

    was owned by defendant, he crossed concrete parking bumper, strip of dirt

    and grass, and stepped up approximately nine inches to reach concrete

    parking landing at adjoining retail center, concrete parking landing had two

    parking places, on other side of concrete parking landing, seamstress shops parking lot is level with landing, except for three-foot section on right end of

    landing, and on his way back to Radio Shack parking lot, plaintiff tripped on

    three-foot section that is four inches lower than concrete parking landing,

    trial court properly granted defendant, owner of seamstress shop, summary

    judgment; because plaintiff was lawfully on defendants premises, defendant owed duty to exercise reasonable care to prevent injury to him, but scope of

    defendants duty of care did not extend to height variation between level of concrete parking landing and parking lot for two reasons: It did not pose

    unreasonable risk, and it was open and obvious condition. Boykin v. George

    P. Morehead Living Trust, 5/29/15, MS, McBrayer, 7 pages. http://www.tncourts.gov/sites/default/files/boykinrobertopn.pdf

    TORTS: In case in which tenant fell on 4/30/12 as he was descending flight

    of stairs that led from deck outside his apartment after step broke, trial court

    properly granted landlord summary judgment when landlord had no

    knowledge of any dangerous condition with regard to stairs at time lease was

    executed in 3/11 and when person hired by landlord testified that repairs were

    made to stairs in fall 2011 and that repairs remedied any problem that existed

    at that time. Palmer v. Kees, 6/1/15, ES, Frierson, 7 pages. http://www.tncourts.gov/sites/default/files/palmeropn2.pdf

  • TORTS: When defendant attorney and law firm (defendants) represented

    plaintiff in suit filed against Mid-South Industries, Inc. from 8/05 to 8/07,

    over course of Mid-South litigation, plaintiff became dissatisfied with

    defendants performance, in part because defendants, over objection of plaintiff, did not pursue claim for fraud against Mid-South, and plaintiff

    filed legal malpractice action against defendants, trial court properly

    granted defendants summary judgment based on statute of limitation; while

    actual injury occurs when there is loss of legal right or remedy, actual

    injury may also take form of plaintiff being forced to take some action or

    otherwise suffer some actual inconvenience, such as incurring expenses, as

    result of defendants negligent or wrongful act; when plaintiff was complaining as early as 7/31/07 that he was required to spend additional

    time and money due to defendants alleged negligence, plaintiff sustained legally-cognizable injury for purposes of accrual of his malpractice claim as

    early as 7/31/07, and hence, his suit, filed on 8/12/08, was barred by statute

    of limitation. Davidson v. Baydoun, 5/29/15, MS, Clement, 6 pages. http://www.tncourts.gov/sites/default/files/davidsonsopn.pdf

    COMMERCIAL LAW: When, while patient at Camden Care Center in

    Minnesota, decedent executed statutory short form power of attorney on

    4/24/12 in favor of her daughter (appellee), power of attorney was executed

    pursuant to Minnesota statute and granted appellee power [t]o act for [decedent] in any way that [decedent] could act with respect to multitude of matters, decedent also executed durable power of attorney for healthcare

    pursuant to Minnesota statute designating appellee as decedents agent (my attorney-in-fact) to make any health care decisions for me when, in the judgment of my attending physician, I am unable to make this decision

    myself and my agent consents to make the decision on my behalf, physician never determined that decedent was incompetent or otherwise unable to make

    healthcare decision for herself, and consequently, healthcare power of

    attorney never became effective, decedent was discharged from Camden Care

    Center and relocated to Memphis, decedent was later admitted to Harbor

    View Nursing and Rehabilitation Center, appellee signed admission contract

    and separate voluntary arbitration agreement, and appellee, as decedents next friend, filed suit against Harbor View and its managing companies, trial court properly denied defendants motion to compel arbitration; plain terms of arbitration agreement clearly show that parties intended execution of

    arbitration agreement to constitute healthcare decision, and because appellee

    did not have authority to make healthcare decision for decedent, appellee did

    not have authority to bind decedent to arbitration. Sanders v. Harbor View

    Nursing & Rehabilitation Center Inc., 5/29/15, WS, Armstrong, 6 pages. http://www.tncourts.gov/sites/default/files/sanderselizabethopn.pdf

  • COMMERCIAL LAW: When plaintiffs signed agreement to purchase

    home, defendant built home and conveyed title to plaintiffs, plaintiffs

    alleged that after moving in, they found drainage problems, water in

    crawlspace, moisture condensation issues, gaps in hardwood floors, and

    recurring flu and allergy symptoms in family members, plaintiffs filed suit

    alleging causes of action for violation of Tennessee Consumer Protection

    Act, breach of contract, breach of express warranty, breach of implied

    warranty, quantum meruit, negligence, negligence per se, rescission, and

    gross negligence, and defendant filed motion to stay litigation and compel

    binding arbitration based on arbitration clause in purchase agreement, trial

    court properly ruled that all of plaintiffs claims, except for claim of fraudulent inducement, should be arbitrated; use of broad arbitration

    language does not constitute waiver of right under Tennessee law to have

    court consider issue of fraudulent inducement. White v. Turnberry Homes

    LLC, 5/28/15, MS, Bennett, 4 pages. http://www.tncourts.gov/sites/default/files/whitem.opn_.pdf

    TAXATION: In case in which corporate officer responsible for paying

    over sales taxes collected by corporation pled guilty to attempted tax

    evasion, as part of his plea agreement, criminal court ordered corporate

    officer to pay restitution of $17,500, after completing probation,

    Department of Revenue (Department) notified corporate officer of

    individual sales tax assessment of $137,494 arising from corporations operations, and corporate officer challenged assessment, arguing that

    amount of criminal restitution, which he had already paid, was full amount

    of his individual liability to Department, given fact that criminal restitution

    and civil tax liability are separate and distinct, trial court properly granted

    Departments motion to dismiss; Department may assess unremitted sales and use taxes, interest, and penalties notwithstanding order of criminal

    restitution for evasion of same taxes. Amrokbeer v. Roberts, 5/28/15, MS,

    McBrayer, 5 pages. http://www.tncourts.gov/sites/default/files/amrokbeervroberts.opn_1.pdf

    FAMILY LAW: Trial court did not err by implicitly denying mothers motion to dismiss termination of parental rights petition on basis of

    improper venue when venue was proper in Weakley County county where child resided when he and his half-sister were first subject to Department of

    Childrens Services custody in 4/11; TCA 36-1-114(3)(A) is not limited to childs residence immediately preceding removal of child statutes use of past tense indicates that residency of child may be determined using prior

    residence of child, so long as child resided there when he or she became

    subject to care or control of child-caring agency; because no clear and

  • convincing evidence exists that termination of mothers and fathers parental rights is in childs best interest, trial courts termination of parents parental rights is reversed mother and father enjoy close and meaningful relationship with child, parents have maintained regular visitation with

    child and have provided child with in-kind support, neither mothers nor fathers mental or emotional statuses prevents them from effectively parenting child, although child has done well in his foster parents home, child knows mother and father as his parents and has frequently and

    consistently expressed his desire to return to their care, and although

    seriousness of childs exposure to methamphetamine should not be discounted, there is no other evidence in record to suggest that child was

    not well-cared for prior to his removal. In re Wesley P., 5/29/15, WS,

    Stafford, 21 pages. http://www.tncourts.gov/sites/default/files/wesleypopn.pdf

    FAMILY LAW: In case in which parties were divorced after 19-year

    marriage, trial court erred in awarding wife alimony in futuro of $4,000 per

    month until her death or remarriage when 43-year-old wife is capable of

    being rehabilitated to high income in future, making long-term support

    unnecessary wife has Masters Degree in Science and Social Work, although she has been out of workforce for about seven years prior to

    starting her private practice as licensed clinical social worker, she has

    experience in field, and wife testified that her business was steadily getting better and that she expected to make $40,000 to $50,000 per year in private practice if not more; although checks husband wrote to his girlfriend

    constituted dissipation of marital assets, wife is not entitled to award equal

    to full amount of dissipation when husband also has interest in money, and

    trial court divided parties marital assets equally; husband is entitled to one-half of assets he dissipated to reflect his one-half interest in dissipated

    assets. Holdsworth v. Holdsworth, 6/3/15, WS, Gibson, 47 pages. http://www.tncourts.gov/sites/default/files/holdsworthstevenopn.pdf

    FAMILY LAW: In light of preference reflected in Tennessee statutes and

    case law for short-term support, trial court did not abuse discretion in

    refusing to award wife alimony in futuro when wife was awarded

    transitional alimony of $5,000 per month for 24 months, at which point

    monthly award would be reduced to $3,000 per month until wife reached

    age of 67 if she had not remarried or cohabitated, and alimony in solido of

    $25,000. Pair v. Pair, 5/29/15, MS, Dinkins, 10 pages. http://www.tncourts.gov/sites/default/files/pairrebeccaopn.pdf

    FAMILY LAW: In case in which, at time of divorce, mother was

    designated primary residential parent of parties child, mother and child subsequently moved to New York, and father was awarded 80 days of

  • parenting time, including one weekend per month, winter holidays, and

    extended summer parenting time, trial court abused discretion in ordering

    mother to pay for transportation costs of child to visit father in Tennessee,

    including cost of additional ticket for parent or guardian to fly with 3-year-

    old child, when trial court imputed annual income of $50,000 to mother

    based on her education, ability to secure job, and money donated from her

    relatives, while husbands annual income was $75,000, both parents recommended to court that they equally share costs of transporting child to

    facilitate fathers parenting time, and requiring mother to pay all costs of transportation will significantly deplete, if not exceed, annual award of

    child support to mother, which creates unjust result upon mother; parenting

    plan is modified to extent that parties will share equally costs of

    transporting child. Keown v. Keown, 5/29/15, MS, Clement, 6 pages. http://www.tncourts.gov/sites/default/files/keownm.opn_.pdf

    FAMILY LAW: In case in which child, who was born in Russia in 2002,

    was adopted by Tennessee resident (Hansen) in 2009, Hansen signed

    agreement with World Association for Children and Parents (WACAP),

    agreeing to remain financially responsible for all costs of care for the child if he was removed from Hansens home, in 4/10, Hansen placed unaccompanied child on one-way flight back to Russia, and in 5/10,

    WACAP filed lawsuit against Hansen, who had since relocated to

    California, in Bedford County circuit court, seeking child support and

    damages arising out of alleged breach of adoption contract, Bedford County

    circuit court lacked subject matter jurisdiction to modify its initial child

    support order in 2/13 when interested parties left Tennessee in 2010, but

    trial court did not impermissibly modify original child support order by changing only intermediary designated to receive Hansens child support payment original order required Hansen to pay $1,000 per month to circuit court clerk, who would apparently send payment to designated

    account in Russia, but trial courts 2/13 order required Hansen to pay same amount by mailing payment to opposing counsel for forwarding to Russia;

    this minor alteration constituted enforcement mechanism, specifying

    manner of compliance with original support order in way that would most

    effectively achieve payment for ultimate beneficiary in Russia; loss of

    continuing exclusive jurisdiction does not deprive tribunal of power to

    enforce arrearages that have accrued during existence of valid order. In re

    Justin H., 5/29/15, WS at Nashville, Gibson, 13 pages. http://www.tncourts.gov/sites/default/files/justinhopn.pdf

    CIVIL PROCEDURE: In case in which man was injured in accident and

    his relatives initiated conservatorship proceedings in probate court,

    conservators were dissatisfied with probate courts handling of case and

  • moved to have case removed to chancery court, and probate court granted

    motion to remove, but chancery court sent case back to probate court,

    because probate court and chancery court in Rutherford County have

    concurrent jurisdiction over conservatorship proceedings, chancery court

    lacked subject matter jurisdiction to determine any issues in conservatorship

    once case was filed in probate court; TCA 16-15-732(b) does not provide

    authority for this case, that was initially filed in probate court, to be

    removed to chancery court; chancery court was correct to review procedure

    by which case was removed to its court from probate court. In re

    Conservatorship of Beasley, 5/28/15, MS, Bennett, 7 pages. http://www.tncourts.gov/sites/default/files/beasleyt.opn_.pdf

    COURT OF CRIMINAL APPEALS

    CRIMINAL LAW: Evidence was sufficient to convict defendant, animal

    care technician at animal shelter, of four counts of aggravated cruelty to

    animals when defendant cruelly and intentionally choked dogs without

    cause before they were euthanized, cruelty inflicted upon these animals was

    excessive because dogs were choked with catchpole until they cried and

    yelped in pain, collapsed, and struggled and gasped to breathe, no sedatives

    were administered to animals because defendant choked them until they

    collapsed to floor or were unconscious, at which point sedative was no

    longer necessary, and defendant could have utilized squeeze gate to contain

    dogs and to provide euthanasia technician with opportunity to administer

    sedative. State v. Stewart, 6/4/15, Jackson, Montgomery, 20 pages. http://www.tncourts.gov/sites/default/files/stewartbillyopn.pdf

    CRIMINAL LAW: Defendants Class D felony evading arrest conviction is reduced to conviction of Class E felony evading arrest when state failed

    to present any proof from which rational trier of fact could find that

    defendant created risk of death or injury to innocent bystanders or other third parties proof showed that only individuals in area were defendant and police officers, and although pursuit occurred in residential and

    commercial area, defendant did not run stop light at high rate of speed.

    State v. Brewer, 6/1/15, Jackson, Williams, 13 pages. http://www.tncourts.gov/sites/default/files/brewer_draft.pdf

    CRIMINAL PROCEDURE: Because motor vehicle habitual offender

    (MVHO) judgment is not money judgment, it involves neither judgment

    creditors nor judgment debtors, and, because it operates in same manner as

    permanent injunction, MVHO judgment can never be satisfied as that term is used in TRCP 69.04 rule provides that within 10 years from entry of judgment, judgment creditor whose judgment remains unsatisfied may

  • move court for order requiring judgment debtor to show cause why

    judgment should not be extended for additional 10 years; to conclude that

    TRCP 69.04 causes automatic expiration of MVHO order after 10 years

    would conflict with plain language of TCA 55-10-615(b) and established

    precedent and would allow defendant to avoid prosecution by simple

    expedient of failing to petition for restoration of his driving privileges. State

    v. Parker, 6/1/15, Jackson, Witt, 6 pages. http://www.tncourts.gov/sites/default/files/parkeranthenlopndoc.pdf

    CRIMINAL PROCEDURE: Petitioners trial counsel, collectively performed deficiently when first attorney, whether due to illness or

    oversight, failed to follow petitioners directive to file motion to withdraw her original guilty plea, and this error was compounded when petitioners second attorney erroneously advised petitioner on clearly established rule of

    procedure, thereby foreclosing available legal course of action most desired

    by petitioner; record established reasonable probability that outcome of

    petitioners case would have been different had either of her trial counsel filed motion to withdraw her original guilty plea prior to entry of second

    guilty plea when not only did petitioner contend that she had earnest change

    of heart after plea, which potentially could be satisfactory basis for

    withdrawal on its own, but petitioner was also presented with change in

    circumstances victim had recanted part of his testimony that provided factual basis for one of charges to which petitioner originally pled guilty; in

    light of fact that petitioner received ineffective assistance of counsel prior to

    entry of her second guilty plea, plea was entered unknowingly. Laird v.

    State, 6/1/15, Nashville, Easter, 13 pages. http://www.tncourts.gov/sites/default/files/lairdsylviaopn.pdf

    COURT OF WORKERS COMPENSATION CLAIMS

    WORKERS COMPENSATION: When employee, server at restaurant, decided to ask off work early because her knees hurt, employee walked to

    store office and approached desk of assistant manager, and, as she sat down

    in chair to ask about leaving work early, employee twisted her right knee

    when her right foot became entangled with chair leg, origin of employees injury was not unexplained and, hence, injury was not idiopathic;

    evidentiary standards imposed by 7/1/14 amendment utilize term

    physician when describing expert opinion necessary to establish whether injury arose primarily out of and in course and scope of employment,

    Tennessee Physician Assistant Act recognizes that physician assistant is not

    physician and shall only practice under supervision of physician, and hence,

    physician assistants causation opinion does not meet statutory standard set

  • forth in TCA 50-6-102(13)(D) since it is not opinion of physician; provision

    of reasonable and necessary medical treatment requires that employer

    provide employee panel of orthopedic surgeons; because only causation

    evaluation admitted into evidence was that given by physician assistant,

    employee did not prove entitlement to temporary disability benefits by

    medical expert opinion. Daniels v. Cracker Barrel Old Country Store Inc.,

    2/25/15, Wyatt, 11 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1063&context=utk_workerscomp

    WORKERS COMPENSATION: In case in which employee testified that on 10/17/14, he slipped while weed-eating in wet grass near fence in

    ditch and that his left foot fell into base of ditch, employee went to

    emergency room two days later and was diagnosed with fractured foot, and

    superintendent testified that employee did not mention injury to him on

    10/17/14 and that he learned of alleged fall on 10/19/14, insufficient

    evidence exists to prove that employee suffered acute injury arising

    primarily out of and in course and scope of his employment on 10/17/14

    when no provider explicitly linked fall employee described in history portion of their records to their resulting diagnoses. Cooke v. Williamson

    County Parks & Recreation, 2/25/15, Switzer, 8 pages. http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1062&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

    2015 TAM CLE CALENDARWebinarsOn-Site Event

    IN THIS WEEKS TAM-BytesSUPREME COURTWORKERS COMP APPEALS PANELWORKERS COMP APPEALS BOARDCOURT OF APPEALSCOURT OF CRIMINAL APPEALSCOURT OF WORKERS COMPENSATION CLAIMS