TAM-BYTES

J uly 28, 2014

Vol. 17, No. 30
2014 TAM CLE CALENDAR
Webinars
Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury
Trials, 60-minute webinar presented by William L. Pfeifer, Alabama appellate
attorney, tomorrow, Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Piercing the Corporate Veil in Tennessee: What Your Business Clients
MUST Know, 60-minute webinar presented by Cole Dowsley, Franklin
attorney, on Thursday, August 14, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

False Claims Act Recovery and Protection for Whistleblowers, 60-minute
webinar presented by Larry Golston, Montgomery attorney, on Wednesday,
August 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26 Nashville School of Law
TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice,
including the latest products liability developments, trial tips from a trial judge,
handling medical records and private information, limitations on the use of HIPAA
protected documents in litigation, Affordable Care Act concerns, auto insurance
policies, negotiating with insurance adjusters, caps on damages, Medicare set-
asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs
and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven
Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.

*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit



Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting QTIPs,
GRATs, and QPRTs, will drafting in 2014, the intersection of family law and
estate planning issues, use of Medicaid-compliant annuities, hot topics in probate
litigation, practicing in probate court, and updates on issues related to trusts, estate
planning, and probate. Also, hear about ethical issues arising when crafting a
healthcare power of attorney, a living will, or an advance care plan and ethical
issues arising in estate administration, such as client confidentiality, billing
inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust, Bank
of America Private Wealth Management; Harlan Dodson, Dodson, Parker, Behm
& Capparella; Donald Farinato, Holbrook Peterson Smith; Carla Lovell,
Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice of Timothy L.
Takacs; Hunter R. Mobley, Howard Mobley Hayes & Gontarek; Jeff Mobley,
Howard, Mobley Hayes & Gontarek; Al Secor, CapitalMark Bank & Trust; Tim
Takacs, CELA, Elder Law Practice of Timothy L. Takacs; and Pam Wright,
CELA, West Tennessee Legal Services.

*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for injuries
occurring on or after July 1, 2014, as well as how claims will be decided by the
claims courts; compliance issues for attorneys subject to HIPAA; latest
developments in medical malpractice, including how the appellate courts have
ruled on compliance with the pre-suit notice and certificate of good faith
requirements; how to embrace your inner digital lawyer and get up to date on
issues such as mobile computing, file management, and the risks of going
mobile; what every litigator needs to know about business entity laws in
Tennessee; latest developments in the family law area; checklist for provisions to
be included in a will today; recent changes to the rules on computer calls; how to
use a little-known VA benefit to aid your clients; overview of the administrative
process in Tennessee from an experienced chancellor; ins and outs of standards of
review and the scope of the appellate practice from an appellate court judge; tips
from a chancellor on pretrial motion practice; an insiders perspective from the
Chief Disciplinary Counsel on the Boards recent developments; how to avoid e-
discovery ethical pitfalls and how to handle social media, e-mail, video, and other
electronically stored information; and insight from a former trial judge and now
special judge on displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge
Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen
Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy,
Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright Daves
& Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella PC; Sandy
Garrett, Chief Disciplinary Counsel, Board of Professional Responsibility; Randy
L. Kinnard, Kinnard, Clayton & Beveridge; Kevin Levine, DeSalvo & Levine
PLLC; Helen S. Rogers, Rogers, Kamm & Shea; Lucas R. Smith, Bass, Berry &
Sims PLC; Richard Spore, Bass, Berry & Sims PLC; Elizabeth Warren, Bass,
Berry & Sims PLC; and John Watts, Watts & Herring, LLC

*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.


IN THIS WEEKS TAM-Bytes

Court of Appeals, in healthcare liability action, holds attorney for defendant
medical entity may confer ex parte with non-party treating physicians who
are employed by defendant medical entity;
Court of Appeals says, with regard to termination of parental rights on
ground of parents incarceration under sentence of 10 years or more when
child is under eight years of age, if parent is sentenced even to just one day
of confinement and then probation for 10 or more years, and child is under
eight years of age, this statutory ground for termination is met; and
Court of Criminal Appeals reverses conviction for conspiracy to possess
more than 26 grams of cocaine with intent to sell or deliver or maintaining
dwelling where controlled substances are used or sold when there was no
proof that defendant maintained dwelling where he and co-conspirator sold
cocaine, alleged overt act.



COURT OF APPEALS

TORTS: In healthcare liability action, trial court erred in holding that attorneys for
defendant medical entity are barred from conferring ex parte with treating
physicians employed by defendant medical entity who are not named as defendants
in suit; Alsip v. Johnson City Medical Center, 197 SW3d 722 (Tenn. 2006), does
not bar medical entitys attorneys from communicating ex parte with physicians
employed by medical entity about physician employees medical treatment of
plaintiffs decedent. Hall v. Crenshaw, 7/18/14, WS, Kirby, 12 pages.
http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf

TORTS: In case in which plaintiffs car was repossessed, plaintiff paid amount
owed but never received car, and plaintiff recovered judgment for conversion, trial
court erred in awarding plaintiff attorney fees first, as special damages, and then,
in amended order, as punitive damages; attorney fees are meant to be
compensatory, and hence, it is inappropriate to award attorney fees as punitive
damages; American Rule applies, and there is no authority to award attorney fees
in this conversion case. Bridgefourth v. Santander Consumer USA I nc., 7/21/14,
WS, Bennett, 3 pages.
http://www.tncourts.gov/sites/default/files/hallcopn_0.pdf

COMMERCIAL LAW: In dispute between fuel supplier (Jerrys Oil) and retail
service station (Handy Peddler), which was owned and operated by Hanna Nazi,
John Nazi, and/or Ben Nazi, in which Jerrys Oil filed suit for nonpayment on
outstanding fuel invoices pursuant to Fuel Supply Agreement, John Nazis decision
to sign different contracts pertinent to this transaction in different ways created
ambiguity as to proprietor of Handy Peddler, and hence, trial court was entitled to
consider other evidence to determine whether John Nazi was holding himself out
as Handy Peddlers owner; trial court simply determined that John Nazi could not
be liable because he was no longer involved with Handy Peddler at time breaches
occurred, which was improper basis for involuntary dismissal; in light of sharply
disputed issues of facts as to whether John Nazi was acting as owner/proprietor of
Handy Peddler, credibility of witnesses is first to be determined by trial court;
judgment is vacated, and case is remanded for reconsideration. Nazi v. Jerrys Oil
Co., 7/18/14, WS, Stafford, 24 pages.
http://www.tncourts.gov/sites/default/files/nazihopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts termination
of fathers parental rights to his child on ground of abandonment by exhibiting
wanton disregard for welfare of child when father was aware that mother was
pregnant after he had sex with her, and while father was concerned enough to
question if he was childs father, he made no further inquiries as to his paternity
after mother openly identified another man as childs father, instead choosing to
continue in his pattern of destructive behavior, including several stints in jail as
result of various criminal activity, which exhibited wanton disregard for his
welfare as well as welfare of child; parents incarceration, under this ground of
abandonment, serves only as triggering mechanism that allows court to take closer
look at childs situation to determine whether parental behavior that resulted in
incarceration is part of broader pattern of conduct that renders parent unfit or poses
risk of substantial harm to welfare of child, and trial court may consider any
relevant conduct that occurred prior to incarceration and is not limited to reviewing
four months immediately preceding incarceration; with regard to termination of
parental rights on ground of parents incarceration under sentence of 10 years or
more when child is under eight years of age, if parent is sentenced even to just one
day of confinement and then probation for 10 or more years, and child is under
eight years of age, this statutory ground for termination is met. I n re Chandler M.,
7/21/14, ES at Nashville, McClarty, partial dissent by Swiney, 16 pages.
http://www.tncourts.gov/sites/default/files/inrechandlerm.opn_.pdf
http://www.tncourts.gov/sites/default/files/inrechandlerm.opndissenting.pdf

FAMILY LAW: In case in which parties married, divorced, remarried (staying
remarried for few years), and then divorced again, on both divorces, parties entered
into marital dissolution agreement (MDA), second MDA awarded wife 50% of all
of husbands military retirement pay, without reference to duration of parties
first marriage, second marriage, or both marriages combined, trial court did not
abuse discretion in holding that wifes award of benefits was based on combined
duration of both marriages, i.e., 20 years. Lambert v. Lambert, 7/18/14, WS at
Nashville, Kirby, 12 pages.
http://www.tncourts.gov/sites/default/files/lamberto.n.k.opn_.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was not sufficient to convict defendant of criminal
conspiracy to possess more than 26 grams of cocaine with intent to sell or deliver
or maintaining dwelling where controlled substances are used or sold when there
was no proof that defendant maintained dwelling where he and Gardner sold
cocaine, alleged overt act, when defendants name was not on lease for home,
multiple witnesses testified that defendant lived with Stanley in apartment, there
was no proof that defendant contributed money to pay rent or other expenses,
provided furnishings, or participated in upkeep of house, and there was no proof
that defendant continuously exercised some authority or control over the [house]
for an appreciable period of time; defendants murder convictions, as well as his
conviction for especially aggravated robbery are affirmed. State v. Massey,
7/23/14, Knoxville, Bivins, 54 pages.
http://www.tncourts.gov/sites/default/files/masseyjopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was determined to be
indigent at his arraignment and at time his motion for new trial was denied, trial
court did not abuse discretion in ordering defendant to pay court costs when
decision of whether to waive court costs rests within discretion of court it is not
mandatory that court waive costs upon finding of indigency. State v. Ryan,
7/22/14, Knoxville, Woodall, 9 pages.
http://www.tncourts.gov/sites/default/files/ryanjamesjosephopn.pdf


PUBLIC CHAPTER

CRIMINAL SENTENCING: Judge may, as condition of probation, order second
or third DUI offender to participate in substance abuse treatment program. 2014
PC 902, effective 7/1/14, 5 pages.
http://www.tn.gov/sos/acts/108/pub/pc0902.pdf


ATTORNEY GENERAL OPINION

CRIMINAL LAW: Intentional, knowing, or reckless conduct will establish
culpable mental state for second degree murder under TCA 39-13-210(a)(2), but,
as practical matter, mental state element for second degree murder resulting from
unlawful distribution of any Schedule I or Schedule II drug, when drug is
proximate cause of death of user, is recklessness. Attorney General Opinion 14-
72, 7/23/14, 3 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-72.pdf





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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