TAM-BYTES March 4, 2013 Vol. 16, No.

9
2013 CLE CALENDAR

Onsite Event
Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal

Audio Conferences
Technology Trends and Social Media: Court Decisions, Legal Implications, and More, 60-minute webinar presented by Chuck Young, in-house attorney for Babcock & Wilcox Technical Services Y-12 LLC in Oak Ridge, on Thursday, March 14 at 10 a.m. (Central), 11 a.m. (Eastern). Child Custody in Tennessee: Recent Developments and Legislative Changes, 60-minute audio conference presented by Kevin Shepherd, Maryville attorney, on Wednesday, March 20 at 2 p.m. (Central), 3 p.m. (Eastern). All is Fair (Use) in Love & Copyright: Recent Developments in Copyright Suits, 60-minute webinar presented by Stephen Zralek, Nashville attorney, on Thursday, April 4 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register for any of our CLE events, call (800) 274-6774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes * Supreme Court, in wrongful death action in which resident of assisted living facility died from perforated colon soon after receiving enema, reverses decision of Court of Appeals and reinstates jurys verdict against management company of assisted living facility based on its failure to provide sufficient personnel at facility; * Supreme Court, in suit by decedents sons challenging decedents marriage to defendant 13 days before his death and challenging decedents will, which left

everything to defendant, reverses jurys verdict in favor of sons because trial court erred in admitting evidence of defendants real estate holdings and evidence regarding defendants late mothers will; * Workers Comp Panel spells out two-party analysis in determining whether employee was justified in not consulting with employer before obtaining medical treatment; * Court of Appeals affirms trial courts decision that driver of public transit vehicle provided appropriate level of assistance to passenger who fell from van after she was driven to dialysis center; * Court of Appeals holds arbitration provisions in TCA 56-7-1206 do not apply to policies with uninsured motorist coverage that were issued and delivered in another state; * Court of Criminal Appeals reiterates that police officers conducting official business have same rights as members of general public, and, as such, they may enter any area of persons property into which general public is implicitly invited for purposes of pursuing legitimate business or social interests, such as sidewalk or pathway leading from public street to front door of residence; * Court of Criminal Appeals rules that trial court erred in denying defendants motion to suppress results of blood test, taken for medical purposes only, when states use of ex parte subpoena for defendants medical records failed to comply with requirements of TCA 40-17-123, specifically, clerk, not judge, signed subpoena for medical records; and * Attorney General says proposed bills which would declare unenforceable any federal law attempting to ban, restrict ownership of, or require registration of certain firearms, firearm accessories, or ammunition in Tennessee would violate Supremacy Clause of U.S. Constitution. SUPREME COURT TORTS: In case in which physician prescribed decedent, resident of assisted living facility, daily dose of over-counter laxative for constipation, nursing staff at facility did not give medicine to decedent as often as prescribed, decedent became constipated, doctor notified nursing staff at facility to give decedent three or four enemas each day beginning on 5/27/04, nurse gave decedent one enema on 5/27/04, none on 5/28/04, and one enema on 5/29/04, decedent died from perforated colon very soon after last enema, decedents daughters filed wrongful death action, and jury found nurse 30% at fault, director of nursing 20% at fault, and management company 50% at fault based on its failure to provide sufficient personnel at facility, material evidence supported jurys verdict against management company; plaintiffs presented material evidence from which jury could reasonably conclude that management company provided insufficient staffing to meet needs of residents at assisted living facility and that management

company was aware of understaffing problem, that lack of adequate staffing at assisted living facility led to lapses and deviation from applicable standard of care, and that deviations from applicable standard of care were substantial factors in decedents death; jury verdict is reinstated, and case is remanded to Court of Appeals for review of award of punitive damages. Wilson v. Americare Systems Inc., 2/25/13, Nashville, Lee, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/wilsonrheaetta.opn_.pdf

ESTATES & TRUSTS: When decedents sons filed suit challenging decedents marriage to defendant 13 days before his death and challenging decedents will, which left everything to defendant, and jury found in favor of sons, because trial court erred in admitting evidence of defendants real estate holdings and evidence regarding defendants late mothers will, and because this irrelevant and prejudicial evidence more probably than not affected jurys verdict, trial courts judgment is reversed, and case is remanded for new trial; defendant waived her argument that sons lacked standing to contest validity of her marriage to decedent. In re Estate of Smallman, 2/26/13, Knoxville, Lee, partial dissent by Koch, 32 pages.
http://www.tncourts.gov/sites/default/files/smallmanrl.opn_.pdf http://www.tncourts.gov/sites/default/files/smallmanrlcondis.opn_.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Cases suggest that for employer to be required to pay for unauthorized medical care, employee must prove (1) justification, i.e., reasonable excuse, for not consulting with employer before incurring medical expenses and (2) necessity and reasonableness of unauthorized medical care; because trial court considered only whether unauthorized medical treatment of employee was reasonable and necessary without expressly considering whether he was justified in not consulting with employer before obtaining treatment, trial courts decision is reversed and case is remanded for further consideration of evidence by trial court as it relates to two-part analysis described herein; TCA 50-6-123(b) gives case manager voice in treatment of employee, but case manager cannot veto treatment prescribed by authorized physician who has been selected by employee pursuant to TCA 50-6204(a)(4)(A); whether case manger exceeded her authority in directing or denying specific medical treatment by particular medical provider is appropriate factor to consider in determining whether employee was justified in obtaining unauthorized medical care; fact employee was not pleased with results of authorized medical treatment, standing alone, does not justify failure to consult employer. Taylor v. Airgas Mid-South Inc., 2/26/13, Jackson, Parish, 9 pages.
http://www.tncourts.gov/sites/default/files/taylorstephenopn.pdf

COURT OF APPEALS TORTS: In medical malpractice suit that was remanded for reconsideration in light of Shipley v. Williams, 350 SW3d 527 (Tenn. 2011), trial court erred in ruling that testimony of plaintiffs expert was not relevant to issues in case by applying incorrect legal standard to determine competency; defendants claim that profession of plaintiffs expert rendered his testimony not relevant to issues in case because he is emergency room physician rather than surgeon or hematologist, but this is same argument made in Shipley where Supreme Court noted that non-surgeons testimony was relevant to issues and allegations which did not pertain to surgery; plaintiffs in case under review contended that defendants were negligent in their monitoring of decedent and in prescribing medications decedent was given after her surgery, and affidavits of plaintiffs expert establish that he is familiar with general standard of care concerning benefits, risks and general uses for Lovenox. Westmoreland v. Bacon, 2/26/13, MS, Cottrell, 11 pages.
http://www.tncourts.gov/sites/default/files/westmorelandmopn_1.pdf

TORTS: In negligence suit by passenger against East Tennessee Human Resource Agency, Inc. (ETHRA), which provides shuttle service for little or no cost to those in need of transportation, and ETHRAs driver for injuries passenger sustained when exiting ETHRA public transit vehicle after being transported to dialysis clinic, trial court did not err in concluding that driver provided appropriate level of assistance under circumstances when passenger had previously entered van twice and exited van once without assistance from driver, passenger did not ask for help when she entered or exited van, passenger did not use assistive device such as cane or walker, and passenger did not appear as if she needed additional assistance above that which was already provided. Cook v. East Tennessee Human Resource Agency Inc., 2/27/13, ES, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/cookopn.pdf

TORTS: In suit against Metropolitan Government of Nashville and Davidson County by plaintiff who alleged that she suffered severe injuries when she fell over mattress on floor of her cell, evidence did not preponderate against trial courts finding that Metro did not breach duty of care it owed plaintiff when plaintiff was escorted to her cell, plaintiff was instructed that she was to sleep on boat bed on floor and there was sufficient lighting in cell. Williams v. Metropolitan Government of Nashville, 2/27/13, MS, Dinkins, 7 pages.
http://www.tncourts.gov/sites/default/files/williams_v._metro_opn.pdf

EMPLOYMENT: In case in which employer terminated employee shortly after discovering that employee was pregnant, employee filed complaint asserting claims of sex and pregnancy discrimination, retaliation, and misrepresentation, and trial court

granted employer summary judgment on each of employees claims, trial court erred in granting employer summary judgment as to employees sex and pregnancy discrimination claims; while affidavit of employees supervisor may be evidence to support employers position that employee was treated as favorably or more favorably than other sales representatives supervisor stated that employee, despite only making three sales in three months, received higher salary than other sales representatives who produced higher sales it does not affirmatively negate essential element of her claims. Castro v. TX Direct LLC, 2/25/13, WS, Farmer, 10 pages.
http://www.tncourts.gov/sites/default/files/castromarinaopn.pdf

INSURANCE: Arbitration provisions in TCA 56-7-1206, part of Tennessee uninsured motorist (UM) statutory scheme, do not apply to policies with UM coverage that were issued and delivered in Texas; UM statutes explicitly state that they apply to automobile insurance policies delivered, issued for delivery or renewed in [Tennessee]. Nelson v. Nelson, 2/22/13, ES, Susano, 6 pages.
http://www.tncourts.gov/sites/default/files/nelsondopn.pdf

INSURANCE: Assuming one-year statute of limitation was tolled for maximum allowance of six months from date of uninsured motorists (defendants) death, plaintiff failed to serve any personal representative for defendants estate, and hence, plaintiffs claim against uninsured motorist carrier is barred unless service was executed in another manner or excused by other means; in order to trigger statute allowing suit to be commenced directly against uninsured motorist carrier, summons must be returned with some indication that uninsured motorist was not to be found, but only summons in record does not indicate that service was either attempted or accomplished on anyone related to defendant, and hence, plaintiffs service on uninsured motorist carrier was not sufficient to properly commence suit; uninsured motorist carrier did not know of defendants death prior to filing of suggestion of death, and hence, uninsured motorist carrier did not waive its argument by failing to include argument in its responsive pleading. Liput v. Grinder, 2/27/13, WS, Stafford, 20 pages.
http://www.tncourts.gov/sites/default/files/liputropn.pdf

CONTRACTS: In case in which plaintiff entered into employment agreement to serve as in-house counsel for company, defendants signed agreement as limited guarantors of companys post-termination separation payment obligation to plaintiff, six months later company was purchased by another entity (Aerus Holdings), and after plaintiff left company, he filed suit alleging that he was not paid separation payments due him under employment agreement, trial court erred in granting plaintiff summary judgment; there is genuine issue as to whether parties agreed that plaintiff would hold same job with Aerus Holdings in lieu of his separation payments; parties had power to agree to change that which plaintiff had been entitled

to, i.e., separation payments, so that plaintiff would receive something else in lieu of separation payments, and plaintiffs employment with new corporation in lieu of separation payments possibly could give rise to defense against plaintiffs claim for separation payments under contract. Keith v. Jackson, 2/22/13, ES, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/keithrwopn.pdf

PROPERTY: In case in which appellees obtained title in 5/10 to parcel of real property, appellant argued that property belonged to her through doctrine of adverse possession because she and her mother had used property exclusively since 1937, and appellees proved at trial that appellant had not paid taxes on land for more than 22 years and moved for directed verdict at close of appellants case-in-chief, trial court properly granted appellees motion based upon statutory bar imposed by TCA 28-2-110, which prohibits any person who has not paid taxes on land from claiming title to land; even if appellant established adverse possession of disputed tract for requisite time period, she would be barred from claiming it by her failure to pay taxes on it. Dye v. Waldo, 2/26/13, ES, McClarty, 14 pages.
http://www.tncourts.gov/sites/default/files/dyeopn.pdf

APPEAL & ERROR: In light of Bernatsky v. Designer Baths & Kitchens LLC, 38 TAM 10-21 (Tenn.App. 2013), circuit court erred in dismissing appeal from general sessions court when, within 10 days of general sessions court judgment, plaintiff filed notice of appeal and paid $211.50 to general sessions court clerk pursuant to TCA 8-21-401(b)(1)(C)(i); as held in Bernatsky, giving cash bond of $211.50, which included $150 standard court cost for such appeals under TCA 8-21401(b)(1)(C)(i), satisfies requirement in TCA 27-5-103(a) to give bond with good security for the costs of the appeal. Andrews v. Clemmer, 2/28/13, WS, Kirby, dissent by Highers, 14 pages.
http://www.tncourts.gov/sites/default/files/andrewsjopn.pdf http://www.tncourts.gov/sites/default/files/andrewsjdis.pdf

APPEAL & ERROR: In light of Bernatsky v. Designer Baths & Kitchens LLC, 38 TAM 10-21 (Tenn.App. 2013), circuit court erred in dismissing appeal from general sessions court when, within 10 days of general sessions court judgment, plaintiff filed notice of appeal and paid $211.50 to general sessions court clerk pursuant to TCA 8-21401(b)(1)(C)(i); as held in Bernatsky, giving cash bond of $211.50, which included $150 standard court cost for such appeals under TCA 8-21-401(b)(1)(C)(i), satisfies requirement in TCA 27-5-103(a) to give bond with good security for the costs of the appeal. Meacham v. Starnes, 2/27/13, WS, Kirby, 5 pages.
http://www.tncourts.gov/sites/default/files/meachamsopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Because TCA 39-14-404(d) provides that acts which constitute offense of especially aggravated burglary may be prosecuted either under especially aggravated burglary statute, or under any other applicable section, such as especially aggravated robbery statute, but not under both, defendants dual convictions for especially aggravated burglary and especially aggravated robbery cannot stand; defendants especially aggravated burglary conviction is modified to one for aggravated burglary. State v. Boatwright, 2/28/13, Knoxville, Glenn, 13 pages.
http://www.tncourts.gov/sites/default/files/boatwrightwilliamopn.pdf

CRIMINAL PROCEDURE: Police officers conducting official business have same rights as members of general public, and as such they may enter any area of persons property into which general public is implicitly invited for purposes of pursuing legitimate business or social interests such as sidewalk or pathway leading from public street to front door of residence because individuals do not have legitimate expectation of privacy in such areas; knock and talk procedure is considered to be consensual encounter with police and means for police officers to request consent to search a residence; because evidence of serious bodily injury was insufficient deputys swollen and bruised eye does not satisfy requirement of protracted or obvious disfigurementdefendants conviction for aggravated assault is reversed and modified to conviction for Class A misdemeanor assault. State v. Rowlett, 2/26/13, Nashville, Thomas, partial dissent by Bivins, 32 pages.
http://www.tncourts.gov/sites/default/files/rowletteddieleroyopn.pdf http://www.tncourts.gov/sites/default/files/rowletteddieleroydisopn.pdf

CRIMINAL LAW: In case in which defendant pled guilty to DUI and reserved certified question of law concerning suppression of results of his blood alcohol test, trial court erred in denying defendants motion to suppress results of blood test, taken for medical purposes only, when states use of ex parte subpoena for defendants medical records failed to comply with requirements of TCA 40-17-123 state acknowledged that clerk, not judge, signed subpoena for medical records; only judge may issue subpoena under TCA 40-17-123; given fact that state dismissed indictment charging defendant with DUI and proceeded with indictment charging him with DUI per se, under which admissibility of blood or breath test evidence determining percentage of alcohol in blood is dispositive of case, defendants conviction is reversed, and indictment is dismissed. State v. McLain, 2/26/13, Knoxville, Ogle, 7 pages.
http://www.tncourts.gov/sites/default/files/mclainsopn.pdf

CRIMINAL PROCEDURE: In post-conviction proceeding, in order to determine whether petitioners appellate counsel was ineffective for failing to raise on direct

appeal sufficiency of convicting evidence, it must first be determined whether ruling in State v. Parker, 350 SW3d 883 (Tenn. 2011) that appellate review of sufficiency of evidence must be undertaken with respect to offense for which defendant was convicted rather than greater offense with which he or she was charged is applicable; Tennessee Supreme Court made clear by its holding in Parker that longstanding law prevents defendant from being convicted of lesser included offense that is not supported by proof, even when greater charged offense is supported by proof; analysis of whether Parker announced new rule of constitutional law and whether holding in Parker should be retroactively applied is not necessary in this case; because evidence was legally sufficient to support petitioners conviction on appeal, appellate counsel was not deficient for failing to challenge sufficiency of evidence. Dickerson v. State, 2/27/13, Nashville, Woodall, 12 pages.
http://www.tncourts.gov/sites/default/files/dickersonshundellopnrehearing.pdf

SIXTH CIRCUIT COURT OF APPEALS COMMERCIAL LAW: In case by securities broker (plaintiff) , who served as employee and registered representative of Capital Trust Wealth Management Group and NBC Securities, Inc., against defendant, law firm that represented NBC, after defendant settled customer complaint against plaintiff for allegedly negligent investment advice notwithstanding plaintiffs objections, district court properly granted defendant summary judgment on breach of fiduciary duty claim when plaintiff did not offer remotely plausible narrative from which to reasonably deduce that defendant intended to (or did) do him wrong; trial court properly granted defendants motion to dismiss Tennessee Consumer Protection Act claim when plaintiff did not allege any sort of loss attributable to defendants allegedly unfair or deceptive acts beyond emotional distress and damage to his business reputation and when plaintiff could not overcome exemption for professionals rendering professional services. Pagliara v. Johnston Barton Proctor & Rose LLP, 2/27/13, Cole, 9 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0053p-06.pdf

BOARD OF JUDICIAL CONDUCT PROFESSION OF LAW: Polk County General Sessions and Juvenile Judge Billy D. Bailes received public reprimand related to complaint arising from emergency situation involving child custody in which order was issued altering custody of child without proper procedure being followed. In re Baliles, 2/20/13, Craft, 2 pages.
http://www.tncourts.gov/docs/documents/board-judicial-conduct/public-reprimand-judge-billy-d-baliles-2013

REVENUE RULINGS TAXATION: Application of Tennessee sales and use tax to various internet-based services. Department of Revenue Ruling 12-25, 10/31/12, 8 pages.
http://www.tn.gov/revenue/rulings/sales/12-25.pdf

TAXATION: Applicability of Tennessee sales and use tax industrial machinery exemption to racks installed within freezer at food production facility. Department of Revenue Letter Ruling 13-02, 1/9/13, 6 pages.
http://www.tn.gov/revenue/rulings/sales/13-02.pdf

ATTORNEY GENERAL OPINIONS GOVERNMENT: Proposed Senate joint resolution, which sets out new, detailed constitutional provisions governing appointment of appellate judges to full and partial terms of office and subsequent retention elections, is constitutional. Attorney General Opinion 13-12, 2/20/13, 5 pages.
http://state.tn.us/attorneygeneral/op/2013/op13-12.pdf

CONSTITUTIONAL LAW: Proposed bill, which would declare unenforceable any federal law implemented on or after 1/1/13 attempting to ban or restrict ownership of certain firearms, firearm accessories, or ammunition or to require that these items be registered in any manner, state that any federal action related to firearms is null and void and of no effect in this state, and create new offense for any person who knowingly enforces or attempts to enforce prohibited federal action, if enacted, would violate Supremacy Clause of U.S. Constitution; in event that federal government lawfully promulgates rules respecting sale, registration, or taxation of firearms, Tennessee lacks authority to render them ineffective within its borders. Attorney General Opinion 13-14, 2/22/13, 5 pages.
http://state.tn.us/attorneygeneral/op/2013/op13-14.pdf

CRIMINAL LAW: Proposed bill, which would allow handgun carry permit holder to transport and store firearms and ammunition in holders privately owned vehicle in any public or private parking lot under specified conditions, would add another exception to criminal offense set forth in present law prohibiting person from possessing or carrying firearm in any public or private school building or bus, on any public or private school campus, grounds recreation area, athletic field, or any other property owned, used, or operated by any board of education, school, college, or university board of trustees, regents, or directors for administration of any public or private educational institution. Attorney General Opinion 13-15, 2/22/13, 4 pages.
http://state.tn.us/attorneygeneral/op/2013/op13-15.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/