TAM-BYTES September 2, 2013 Vol. 16, No.

35
2013 TAM CLE CALENDAR

Audio Conferences
The Smoking Guns of Social Media: How to Collect, Preserve, and Admit Social Media Evidence at Trial, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney, on Wednesday, September 11 at 10 a.m. (Central), 11 a.m. (Eastern). Medical Malpractice in Tennessee: Where We Stand in 2013 60-minute webinar presented by Chris Tardio, Nashville attorney, on Tuesday, September 24 at 10 a.m. (Central), 11 a.m. (Eastern). Oops, It Happened Again: Inadvertent Disclosure Under Federal Rule of Evidence 502, 60-minute audio conference presented by Wayne Morse, Birmingham attorney, on Thursday, October 10 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate

PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court; William
(Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: Donald Farinato, Holbrook Peterson Smith; Monica Franklin,

CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY: Elaine Beeler, Clerk & Master, Chancery Court for 21st Judicial
District (Hickman, Lewis, Perry, and Williamson counties); Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs Lyle,
Judge Tim Easter, attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

TENNESSEE WORKERS COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 at the Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers comp system; hear about issues arising with future medical benefits, causation, and pain management; hear from Tennessee Supreme Court Justice Connie Clark, who will be a part of a panel discussion that will include a plaintiffs attorney, a defense attorney, and an administrative attorney from the Department of Labor and Workforce Development; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13

IN THIS WEEKS TAM-Bytes Court of Appeals holds allegations that nursing home failed to properly administer medication and medical device prescribed by physician, and failed to monitor medical condition of decedent at all times prior to her death, sound in medical malpractice, and affirms dismissal of suit for failure to file certificate of good faith; In case in which plaintiffs alleged that shower bench in defendant hotel collapsed, Court of Appeals rejects theory that condition was caused or created by defendant because he hired builder to construct hotel but reverses summary judgment in favor of defendant on basis that defendant had duty to exercise reasonable care and diligence to ensure that shower benches performed as designed; In case in which mother notified father of her intent to relocate with parties two children to Wisconsin for purpose of residing with her new husband, Court of Appeals affirms trial courts finding that relocation was not in childrens best interest when children were bonded with maternal grandparents, with whom children and mother had lived for last five years, and when children did not wish to relocate; Court of Appeals reverses trial courts award to paternal grandparents of visitation with grandchild when grandparents failed to meet their burden to prove that either substantial harm or severe emotional harm was likely to occur as result of cessation of visitation; Court of Appeals reverses trial courts decision to terminate fathers parental rights on ground of abandonment by willful failure to visit when mother did nothing to encourage or facilitate visitation between children and father, father did not have mothers new contact information once her cell phone was deactivated, and father was dissuaded from aggressively seeking contact with mother because she had previously attempted to take out order of protection against him; Court of Criminal Appeals says fact that victim of kidnapping offense was different than named victim of accompanying felony does not eliminate need for due process analysis; and Court of Criminal Appeals says trial judge erred in relying on doctrine of transferred intent to set aside jury verdicts of attempted second degree murder as state need not show that victim(s) suffered any injury to support conviction.

COURT OF APPEALS TORTS: Allegations of complaint sound in medical malpractice, and hence, trial court properly dismissed complaint for failure to comply with TCA 29-26-122, which requires filing of certificate of good faith; claim that defendant negligently administered, or failed to administer, medicine that was prescribed by physician directly pertains to medical treatment; proper administration of prescribed medicine is medical treatment; proper administration of prescribed medical device such as CPAP machine bears substantial relationship to rendition of medical treatment; plaintiffs allegation that defendant failed to monitor the condition of the patient at all times is, like other two allegations of negligence, matter that concern[s] medical art or science, training, or expertise and could not be assessed by the trier of fact based upon ordinary everyday experiences. Dunlap v. Laurel Manor Health Care Inc., 8/29/13, ES, Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/dunlapsopn.pdf

TORTS: In case alleging that shower bench in hotel collapsed, causing plaintiff to fall, allowing plaintiffs to recover based on theory that condition was caused or created by defendant because he hired builder to construct hotel would obliterate Tennessees recognition of general rule that employers are ordinarily not liable for negligence of independent contractor; defendant had duty to exercise reasonable care and diligence to ensure that shower benches performed as designed, and there was material evidence from which trier of fact could conclude that condition existed for sufficient time and under such circumstances that one exercising reasonable care and diligence would have discovered danger; trial court erred in granting defendant summary judgment because material questions of fact remained. Parker v. Holiday Hospitality Franchising Inc., 8/27/13, ES, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/parkergregopn.pdf

TORTS: In case in which vehicle driven by 19-year-old plaintiff crossed over railroad tracks and was hit by train, evidence did not preponderate against trial courts conclusion that plaintiff was more than 50% at fault; even if absent flagman rule applies, plaintiff still had duty to look and listen for oncoming train. Freeman v. CSX Transportation Inc., 8/28/13, MS, Bennett, 18 pages.
http://www.tncourts.gov/sites/default/files/freemanp._opn.pdf

INSURANCE: In case in which Jenkins, who was not listed in insurance policy as driver, was involved in accident while driving vehicle of insured, Jenkins use of insureds vehicle was regular or frequent, and hence, there was no coverage for loss resulting from accident under unambiguous terms of clause of policy excluding coverage for unlisted driver who is regular and frequent operator of insured

vehicle, when Jenkins had routinely been driving vehicle at fairly short intervals, for total of between 26 and 52 times in six-month period. Weed v. First Acceptance Insurance Co. of Tennessee Inc., 8/29/13, ES, Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/weedkopn.pdf

COMMERCIAL LAW: In suit by homeowners association (HOA) against general contractor because of drainage issues, once defendant, as general contractor, undertook project, common law imposed duty to ensure that condominium community was completed in workmanlike fashion, and defendant breached this duty by failing to remedy problems with drainage system; evidence presented at trial was sufficient to support HOAs allegations of fraud and/or negligent misrepresentation; while defendant may have installed appropriate pipes and built certain ponds as required by city, release of performance bond by city did not signify citys approval of drainage conditions. Raleigh Court Condominiums Homeowners Association Inc. v. E. Doyle Johnson Construction Co., 8/29/13, ES, McClarty, 21 pages.
http://www.tncourts.gov/sites/default/files/raleighopn.pdf

COMMERCIAL LAW: When parents conveyed their interest in property in 1985 to their five adult children, complaint alleged that, at time of conveyance, parents and children agreed that children would transfer property back to parents upon their request, three of children conveyed their interest in property to other two children in 1986, mother asked two children in 1999 to transfer property back, two children refused, and parents and three grantors of 1986 deed brought suit against two daughters and son-in-law (defendants), trial court erred in granting defendants directed verdict; there was material evidence presented at trial from which jury could have reasonably concluded that defendants breached oral agreement to reconvey property upon parents request; trial court erred in concluding that, as matter of law, the 1986 deed did away with the [agreement] to reconvey the property back, and that being the case, it did not survive past that deed ; there is no legal ground to support conclusion that 1986 deed operated to terminate alleged oral agreement and parents claim, and hence, trial courts directed verdict as to that claim is vacated. Overton v. Lowe, 8/26/13, ES, Susano, 8 pages.
http://www.tncourts.gov/sites/default/files/overtonaopn.pdf

DAMAGES: In suit alleging defective construction of log home built by defendants for plaintiffs in which jury found that defendants had breached implied warranty of habitability and that plaintiffs had sustained $50,000 in damages as result of this breach, jurys award was within reasonable range of damages and material evidence supported jurys verdict; when witness (Carter) opined that least expensive way to fix problems with house properly would be to tear it down and rebuild it at cost of $335,643, fact that on cross-examination Carter admitted that number of problems with house could be repaired for approximately $16,330 did not invalidate fact that jury was

presented with material evidence that cost to repair house would be $335,643; although witness (Bowley) testified that house was worth only about $75,000 but that if it had been properly constructed it would have been worth $350,000, it stretches credibility to state that plaintiffs should recover damages of $275,000 when house and land cost them only $165,000 when they purchased house and land less than seven years before trial. Bowley v. Lane, 8/29/13, ES, Swiney, 14 pages.
http://www.tncourts.gov/sites/default/files/bowleyjmopn.pdf

FAMILY LAW: In case in which mother notified father of her intent to relocate with parties two children to Wisconsin for purpose of residing with her new husband, evidence did not preponderate against trial court s finding that relocation was not in childrens best interest when children were bonded with maternal grandparents, with whom children and mother had lived for last five years, removing children from father and their network of family members in Tennessee and North Carolina would erase continuity and stability of their present home environment, father, who obtained employment in North Carolina so he could reside as close as possible to children, has always been significantly involved in childrens lives, and children, who were happy and thriving in their current environment, did not wish to relocate; remarriage alone is not sufficient reason to grant partys request for relocation. Thorneloe v. Osborne, 8/26/13, ES, Frierson, 15 pages.
http://www.tncourts.gov/sites/default/files/thorneloe_-_final.pdf

FAMILY LAW: Evidence preponderated against trial courts award to paternal grandparents of visitation with grandchild on basis of finding of severe emotional harm to child if visitation was not granted when grandparents failed to meet their burden to prove that either substantial harm or severe emotional harm was likely to occur as result of cessation of visitation when there was no evidence that child, who was only three years old at time of trial, suffered any ill effects due to cessation of grandparent-grandchild relationship, and single incident where child excitedly repeated name Nana after grandparents were mentioned to him fails to rise to level of substantial harm contemplated by grandparent visitation statute; significant relationship or emotional connection with petitioning grandparent does not, ipso facto, lead to conclusion that child will be harmed by loss of relationship, and feelings of excitement do not rise to level of other emotions that are customarily associated with findings of emotional harm, such as grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, or nausea; evidence regarding substantial harm must be specific to this childs relationship with this grandparent, and hypothetical evidence of childs reaction to cessation of relationship with another grandparent fails to meet this standard. McGarity v. Jerrolds, 8/27/13, WS, Stafford, 24 pages.
http://www.tncourts.gov/sites/default/files/mcgarityropn_0.pdf

FAMILY LAW: Evidence preponderated against trial courts termination of fathers parental rights to child on ground of abandonment by wanton disregard when father was not put on sufficient notice that his parental rights could be terminated on that ground petition, while referencing pertinent statute, failed to identify specific ground of abandonment by wanton disregard; evidence preponderated against trial courts termination of mothers parental rights on ground that mother committed severe child abuse against child when, between admission of testimony of nonsequestered witness and inconsistency during trial concerning which medical records would be admissible, there were significant errors in mother s trial; evidence preponderated against trial courts termination of mothers parental rights on ground of persistence of conditions when there was evidence that mother has been taking remedial steps in her life by time of trial, including obtaining residence, getting her drivers license back, and holding down employment; case is remanded to trial court for new trial for both mother and father. In re Johnny K.F., 8/27/13, ES, Swiney, dissent by McClarty, 19 pages.
http://www.tncourts.gov/sites/default/files/inrejohnnykfopn.pdf http://www.tncourts.gov/sites/default/files/johnnydissentopn.pdf

FAMILY LAW: In case in which mother and stepfather of two children filed petition to terminate parental rights of children s father, evidence preponderated against trial courts decision to terminate fathers parental rights on ground of abandonment by willful failure to visit when mother did nothing to encourage or facilitate visitation between children and father, father did not have mothers new contact information once her cell phone was deactivated, and father was dissuaded from aggressively seeking contact with mother because she had previously attempted to take out order of protection against him; evidence preponderated against trial courts termination of fathers parental rights on ground of abandonment by willful failure to support children when father paid approximately one-third of what he owed in child support during relevant time period, and father s payments were not insignificant given his means and did not amount to mere token support. In re Adoption of Alexander M.S.F., 8/27/13, MS, Bennett, 9 pages.
http://www.tncourts.gov/sites/default/files/inreadoptionofalexander_m._s.f._opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Because trial judge erred in failing to instruct jury properly pursuant to State v. White, 362 SW3d 559 (Tenn. 2012), defendants especially aggravated kidnapping conviction is reversed, and case is remanded for new trial on that charge; given fact that defendants confinement of victim occurred during accompanying robbery, confinement was limited to living room during entire robbery, and confinement ended as soon as defendant exercised control of safe,

question of whether defendants confinement of victim was essentially incidental to accompanying aggravated robbery was subject to different interpretations by jury and was not harmless beyond reasonable doubt; Tennessee Supreme Court has never said that fact that victim of kidnapping offense was different than named victim of accompanying felony eliminated need for due process analysis. State v. Bowman, 8/29/13, Knoxville, Ogle, dissent by Woodall, 23 pages.
http://www.tncourts.gov/sites/default/files/bowmanjoshopn.pdf http://www.tncourts.gov/sites/default/files/bowmanjoshldis.pdf

CRIMINAL LAW: Trial judge erred by relying on common law doctrine of transferred intent to set aside jury verdicts of attempted second degree murder (two counts) and entering judgments of acquittal when state need not show that victim(s) suffered any injury to support conviction of attempted second degree murder. State v. Glass, 8/28/13, Knoxville, Witt, 18 pages.
http://www.tncourts.gov/sites/default/files/glasssamuelopn_0.pdf

EVIDENCE: In murder case, trial judge did not abuse discretion in admitting testimony of victims co-worker (Sabino) under state of mind exception to hearsay rule when Sabino testified that victim told him that he was still at work because he was planning to go to Kroger store later that evening and meet with individual and then go to Gallatin in order to pick up his roommate statement clearly exhibits victims then existing state of mind, i.e., his intent and plan to meet someone at Kroger and then pick up his roommate in Gallatin, and any ambiguity in victims statement concerning his plan could have actually benefitted defendant by allowing him to argue that victim was not meeting him but another individual at Kroger that evening; even though there was no evidence that victim actually traveled to Gallatin, jury could have easily determined that victim was referring to area around Gallatin Pike in Nashville and not actual town of Gallatin, Tennessee. State v. Kuot, 8/26/13, Nashville, Glenn, 20 pages.
http://www.tncourts.gov/sites/default/files/kuotgaiopn.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