TAM-BYTES

July 13, 2015

Vol. 18, No. 28
2015 TAM CLE CALENDAR

Webinars
Litigating Personal Injury Claims in Tennessee: ACA and HIPAA
Rules, 60-minute webinar presented by Mathew Zenner with McCune,
Zenner and Happell in Nashville, on Wednesday, August 12, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Court of Workers Compensation Claims: One Year
Later, 60-minute webinar presented by Chief Judge Kenneth
Switzer with Court of Workers Compensation Claims, on Thursday,
August 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Alimony Issues in Tennessee: An Update for Attorneys, 60-minute
audio conference presented by Kevin Shepherd, attorney in Maryville and
Franklin, on Wednesday, August 26, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Social Security Retirement Benefits: Looking at the Big Picture to
Benefit Your Client, 60-minute webinar presented by Michael
Crowder, with Kennerly, Montgomery & Finley, P.C. in Knoxville, on
Thursday, August 27, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Marketing Your Legal Practice: Websites, Blogs, and More, 60minute webinar presented by David Anthony, with Bone McAllester &
Norton PLLC in Nashville, on Thursday, August 27, 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 Events

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

Family Law Conference for Tennessee Practitioners

*Two dates in Nashville this year*
WHEN: Thursday & Friday, October 8 & 9 AND
Thursday & Friday, December 3 & 4
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE, including 12 hours of GENERAL and 3
hours of DUAL credit

OCTOBER FACULTY: Judge Don R. Ash, senior judge, Tennessee

Senior Program; Judge Mike Binkley, circuit court, 21st Judicial District
(Hickman, Lewis, Perry, and Williamson counties); Judge Philip Smith,
circuit court, Davidson County; and Judge Thomas Wright, circuit court,
3rd Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins counties);
along with attorneys Barry Gold, McWilliams & Gold, Chattanooga; John
J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville; Cathy Speers
Johnson, Thompson Burton PLLC, Nashville; Stanley A. Kweller,
Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Marlene
Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr., Richter
& Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; and Jacob Thorington,
Cheatham, Palermo & Garrett Law, Nashville.
DECEMBER FACULTY: Judge Robert L. Childers, circuit court, Shelby
County; Judge Phillip Robinson, circuit court, Davidson County; Judge
Joseph Woodruff, circuit court, 21st Judicial District (Hickman, Lewis, Perry,
and Williamson counties); and Judge Thomas Wright, circuit court, 3rd
Judicial Circuit (Greene, Hamblen, Hancock, and Hawkins counties); along
with attorneys Amy J. Amundsen, Rice, Amundsen & Caperton PLLC,
Memphis; John J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville;
Cathy Speers Johnson, Thompson Burton PLLC, Nashville; Stanley A.
Kweller, Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville;
Marlene Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr.,
Richter & Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney;
Greg Smith, Stites & Harbison PLLC, Nashville; and Jacob Thorington,
Cheatham, Palermo & Garrett Law, Nashville.
HIGHLIGHTS: Protecting a clients separate assets; valuing and dividing
marital property; access to mental health records in a custody case; special
issues in military divorce; practical tips from judges on issues such as
attorney fees, contempt, and child custody modification; marketing yourself
and your law firm; social media tips and tricks; domestic violence cases and
mediation; cohabiting couples and same-sex marriages; attorney fees in
family matters and contempt; case law/legislative update; and ethical
considerations in family law.
To learn more or to register, visit: http://www.mleesmith.com/family-law-15

Probate & Estate Planning Conference for Tennessee

Attorneys
WHEN: Thursday & Friday, October 22 & 23
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE, including 12 hours of GENERAL and 3
hours of DUAL credit
FACULTY: Rebecca Blair, The Blair Law Firm, Brentwood; Julie A.
Boswell, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville;
Jennifer Surber, Surber, Asher, Surber & Moushon, PLLC, Nashville;
Harlan Dodson, Dodson, Parker, Behm & Capparella P.C., Nashville;
Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville; David
Heller, Martin Heller Potempa & Sheppard, Nashville; Steve McDaniel,
Wyatt Tarrant & Combs LLP, Memphis; John McDonald, Evans, Jones &
Reynolds, PC, Nashville; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Jeff Mobley, Howard Mobley Hayes &
Gontarek, PLLC, Nashville; Joel D. Roettger, Gentry, Tipton &
McLemore, P.C., Knoxville; Stacy Roettger, The Trust Company of
Knoxville, Knoxville; Brian S. Shelton, Bradley Arant Boult Cummings
LLP, Nashville; Alexander M. Taylor, Kennerly Montgomery & Finley,
P.C., Knoxville; and Matthew Thornton, Bourland, Heflin, Alvarez,
Minor & Matthews, PLC, Memphis.
HIGHLIGHTS: Advanced estate planning tips; checklists with trust
drafting tips; estate planning with trusts; will drafting tips - planning
opportunities and challenges for 2015 and beyond; planning for digital
assets; revocable trusts versus traditional will; planning for a gradual
transfer of land within the family; features of properly designed grantor
trust for Medicaid and veterans planning; minimizing fees and costs by
utilizing alternatives to probate; how to use retirement assets in estate
planning; strategies for resolving TennCare claims; trusts, estate planning,
and probate update; tips for practicing in probate court; ethical issues
arising in estate planning and estate administration, such as client
confidentiality, billing inquiries, and other difficult-to-resolve dilemmas;
and sample forms and checklists.
To learn more or to register, visit: http://www.mleesmith.com/probate

IN THIS WEEKS TAM-Bytes

In suit by food server/bartender alleging that defendants violated
TCA 50-2-107 of Tennessee Wage Regulation Act by failing to pay
her and other similarly situated employees all of gratuities that they
earned, Court of Appeals rules that trial court erred in holding that
TCA 50-2-107 does not permit private cause of action in light of
amendments to TCA 50-2-101 in 2013;
Court of Criminal Appeals reverses first degree murder convictions
when state committed prosecutorial misconduct during its rebuttal
argument by quoting from rap lyrics, which included racial
epithets, taken from defendants social media sites;
Court of Criminal Appeals says re-indictment of defendant following
mistrial for two counts of conspiracy to commit first degree murder
constituted saving back of charges that TRCrP 8 is intended to
prevent;
Court of Criminal Appeals, in reversing denial of pretrial diversion,
says prosecutor abused discretion in concluding that defendants
amenability to correction weighed against granting pretrial diversion
because defendant had not demonstrated sufficient remorse for her
actions;
Court of Criminal Appeals reverses denial of pretrial diversion in
case in which defendant, former teachers assistant, was charged with
assault after engaging in altercation with student at school;
General Assembly implements 48-hour waiting period on procuring
abortion and establishes requirements for informed consent; and
In suit by two contestants almost decade after they were publicly
disqualified from participating on television show American Idol,
Sixth Circuit affirms dismissal of defamation-related claims over
statements in several online news articles that, over years, had
referenced contestants disqualifications.

COURT OF APPEALS
EMPLOYMENT: When plaintiff, food server/bartender filed suit alleging
that defendants violated TCA 50-2-107 of Tennessee Wage Regulation Act
by failing to pay her and other similarly situated employees all of gratuities
that they earned, trial court erred in dismissing plaintiffs claim under TCA
50-2-107 based on its determination that section does not permit private
cause of action in light of amendments to TCA 50-2-101 in 2013; TCA 502-107 provides private right of action notwithstanding 2013 amendment to

TCA 50-2-101 providing for enforcement of that section by Department of

Labor and Workforce Development; TCA 50-2-107 does not contain
provision limiting enforcement to Department; legislature amended TCA
50-2-107 in 2012, 14 years after decision in Owens v. University Club of
Memphis, 23 TAM 48-5 (Tenn.App. 1998), holding that private right of
action may be inferred under TCA 50-2-107 and did not legislatively
overrule Owens. Hardy v. Tournament Players Club at Southwind Inc.,
7/2/15, WS, Goldin, dissent by Gibson, 30 pages.
http://www.tncourts.gov/sites/default/files/hardykim.opn_.pdf
http://www.tncourts.gov/sites/default/files/hardykimdis.pdf

FAMILY LAW: Evidence preponderated against trial courts termination

of fathers parental rights to his child on grounds of abandonment by failure
to provide child with suitable home and substantial non-compliance with
requirements of permanency plans; ground of abandonment by failure to
provide suitable home is not applicable to father given fact that father was
incarcerated at time of childs removal, he remained incarcerated
throughout entirety of childs involvement with Department of Childrens
Services (DCS), and child was removed from mothers home; ground of
substantial non-compliance with requirements of permanency plans is not
applicable to father given fact that father remained in contact with DCS but
was unable to complete remainder of requirements due to his incarceration.
In re Jamel H., 7/13/15, ES, McClarty, 12 pages.
http://www.tncourts.gov/sites/default/files/jamelopn.pdf

FAMILY LAW: In case involving enrollment of foreign decree of

visitation order, in which Kentucky court granted grandmother temporary
visitation with appellants children, this court, in 1/15, held that trial courts
enrollment of foreign decree was error, and appellants filed appeal of trial
courts finding of civil contempt for violation of visitation order enrolled in
trial court, because trial court lacked authority to enroll order from which
contempt springs, that order was void ab initio, and there can be no finding
of contempt for violation of void order. Moorcroft v. Stuart, 7/6/15, WS at
Nashville, Armstrong, 8 pages.
https://www.tba.org/sites/default/files/moorcroftp_070715.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of first
degree premeditated murder, state committed prosecutorial misconduct
during its rebuttal argument by quoting from rap lyrics, which included
racial epithets, taken from defendants social media sites; racial insults are
not permissible simply because they were in material quoted by speaker and

words of local rapper who doesnt have anything to do with this case,
and racial epithets appear to have had no purpose other than to place
defendant in bad light, appeal to racial prejudice, and, apparently, suggest
that defendant occupied position superior to that of co-defendant, i.e.,
defendant was able to have his little man commit killing; given fact that
states case against defendant was circumstantial and not overwhelming, no
attempt was made by state to tie violent and belligerent attitude of rap
lyricist to specific actions of defendant, and trial judge both declined to give
limiting instruction as to rap lyrics or to grant mistrial, defendants
conviction is reversed, and case is remanded for new trial. State v. Rucker,
7/9/15, Nashville, Glenn, 14 pages.
http://www.tncourts.gov/sites/default/files/ruckerdeandreopn.pdf

CRIMINAL LAW: In case in which defendant, through series of

indictments, was charged with one count of conspiracy to commit first
degree premeditated murder, three counts of felony murder, and one count
of especially aggravated robbery, trial court consolidated indictments and
required state to elect which offenses it wished to prosecute, state chose not
to prosecute defendant on charge of conspiracy to commit first degree
premeditated murder and proceeded to trial on Count 2 of indictment
(especially aggravated robbery) and Counts 3, 4, and 5 (three counts of
felony murder), at conclusion of trial, jury was deadlocked, trial court
granted defendants motion for acquittal as to especially aggravated robbery
in Count 2 and felony murder and lesser included offense of second degree
murder in Counts 3, 4, and 5, trial court declared mistrial in Counts 3, 4,
and 5 for remaining lesser included offense of facilitation of felony murder,
after mistrial, state re-indicted defendant for host of offenses, including two
counts of conspiracy to commit first degree premeditated murder, and
defendant filed motion to dismiss indictment, which trial court granted,
indictments were not barred by statute of limitation because statute of
limitation was tolled for over one year and four months, 3/19/14
indictments were still issued within 15-year statute of limitation; Double
Jeopardy Clause does not prohibit re-indictment of defendant; indictments
constitute saving back of charges that TRCrP 8 is intended to prevent
given fact that offenses of felony murder and conspiracy to commit first
degree murder were parts of same common scheme or plan, i.e., to rob and
murder victims; after partial acquittal, state is now attempting to prosecute
defendant on charge that it deliberately declined to prosecute at her first
trial, and effect of this prosecution would be to subject defendant to
separate criminal trial for multiple offenses that were mandatorily
consolidated, result that TRCrP 8(a)(2) expressly prohibits; trial court
properly found that TRCrP 8 precludes prosecution of defendant for

charges of conspiracy to commit first degree premeditated murder. State v.

Blair, 7/9/15, Knoxville, Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/blairtopn_0.pdf

CRIMINAL LAW: In case in which defendant was convicted of two

counts of especially aggravated kidnapping and three counts of aggravated
robbery, in addition to several other charges, trial judge did not err in failing
to instruct jury pursuant to State v. White, 362 SW3d 559 (Tenn. 2012), on
two counts of especially aggravated kidnapping given fact that White does
not apply to cases, like present one, in which defendant is charged with
kidnapping of one victim and accompanying felony, such as aggravated
robbery, against another victim. State v. Anderson, 6/29/15, Knoxville,
Holloway, concurrence by Ogle, 32 pages.
http://www.tncourts.gov/sites/default/files/andersonfrederick.pdf

CRIMINAL SENTENCING: In case in which defendant was charged

with two counts of statutory rape and two counts of contributing to
delinquency of minor, trial judge abused discretion in denying defendants
request for pretrial diversion; prosecutor abused discretion in concluding
that defendants amenability to correction weighed against granting pretrial
diversion because defendant had not demonstrated sufficient remorse for
her actions prosecutor may not require defendant to admit guilt before
granting pretrial diversion record does not contain substantial evidence to
support conclusion that ends of justice and best interests of defendant and
public favor denying pretrial diversion, and need for deterrence is not so
exceptional as to outweigh all other factors to be considered when
defendant has not been arrested for or charged with any other crime since
present offenses; equity does not require granting defendant pretrial
diversion nunc pro tunc to 2012, date of defendants pretrial diversion
application; case is remanded to trial court with instructions to order
prosecutor to grant defendant pretrial diversion. State v. Stephens, 7/7/15,
Nashville, Holloway, 10 pages.
http://www.tncourts.gov/sites/default/files/stephenssusangail.opn_.pdf

CRIMINAL SENTENCING: In case in which defendant, former teachers

assistant, was charged with assault after engaging in altercation with student
at school where he was employed, trial court did not properly review
district attorneys decision to deny defendants request for pretrial
diversion; record does not contain substantial evidence supporting district
attorneys denial of diversion on grounds of circumstances of offense,
amenability to correction, ends of justice, or deterrent effect on other
criminal activity, i.e., that granting of pretrial diversion could send
educators message that defendants behavior was acceptable; even if
defendant was acting aggressively toward victim, such behavior constitutes

circumstance of offense, and such fact is not of such overwhelming

significance that [it necessarily] outweigh[s] all other factors, and hence, it
should not be given controlling weight in diversion decision; case is
remanded to trial court with instructions to order district attorney to grant
defendant pretrial diversion. State v. Hamilton, 7/6/15, Knoxville,
Holloway, 10 pages.
http://www.tncourts.gov/sites/default/files/hamiltongary.opn_1.pdf

PUBLIC CHAPTER
FAMILY LAW: Implementation of 48-hour waiting period on procuring
abortion; establishment of requirements for informed consent; information
which must be provided to pregnant woman, both orally and in person, by
attending physician who is to perform abortion. 2015 PC 473, effective
7/1/15, 4 pages.
http://share.tn.gov/sos/acts/109/pub/pc0473.pdf

SIXTH CIRCUIT COURT OF APPEALS

TORTS: District court properly dismissed all claims asserted in complaint
by plaintiffs, Corey Clark and Jared Andrews, almost decade after they
were publicly disqualified from participating on television show American
Idol in case in which plaintiffs filed variety of defamation-related claims
over statements contained in several online news articles that, over years,
had referenced their disqualifications; Tennessee would not diverge from
majority trend and adopt continuing tort theory in defamation context;
Tennessee adopted single publication rule in print domain, and, given
policy considerations driving Tennessees adoption of single publication
rule in context of print-based mass communications, it would be highly
unusual if Tennessee resuscitated multiple publication rule in online
context; defendant did not republish statements in question simply by
keeping them continuously available on its website. Clark v. Viacom
International Inc., 7/8/15, Griffin, 25 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0490n-06.pdf

CRIMINAL PROCEDURE: Because Sutton v. Carpenter, 745 F3d 787

(6th Cir. 2014), held that ineffective assistance of post-conviction counsel
can excuse Tennessee defendants procedural default of substantial
ineffective assistance of trial counsel (IATC) claim, district court erred by
using improper standard to determine whether petitioner showed cause to
excuse procedural default of his claim for IATC; district courts decision is
reversed and case is remanded with regard to all of alleged IATC claims,

except for petitioners claims that were raised on initial collateral review,
dismissal of which are affirmed as procedurally defaulted. Atkins v.
Holloway, 7/8/15, Siler, 13 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0141p-06.pdf

U.S. DISTRICT COURT

CONSTITUTIONAL LAW: In case in which plaintiffs, eight registered
voters, argued that their rights to due process and equal protection under
Fourteenth Amendment were violated in 11/4/14 general election, in which
voters could cast their votes for governor and vote on four proposed
amendments to Tennessee Constitution, including Amendment 1 (providing
that womans right to abortion is not protected by Tennessee Constitution)
because their votes against Amendment 1 were improperly diluted,
defendants motion to dismiss for failure to state claim is denied. George v.
Haslam, 7/1/15, M.D.Tenn., Sharp, 22 pages.
http://www.tba.org/sites/default/files/amendment1memorandum_07012015.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When Valediaz, roofer who worked for
subcontractor, suffered injuries arising out of and in course and scope of his
employment as result of fall from roof of house at contractors worksite in
Tennessee, subcontractor had workers compensation insurance with
Liberty Mutual, and Liberty Mutual argued it only provided workers
compensation coverage for subcontractor in Georgia according to its
contract with subcontractor, Liberty Mutual is responsible insurance carrier
in case when Liberty Mutual did not have witness that could authenticate
contract, only proof in evidence indicated that Liberty Mutual provided
coverage for subcontractor in Tennessee, Certificate of Insurance listed
subcontractor with Tennessee address, subcontractors owner testified that
he bought workers compensation for coverage in Tennessee, and when
builder of home, Tennessee company, requested proof of insurance, Liberty
Mutuals agent sent it to builder in Tennessee. Velediaz v. Valles Roofing,
4/28/15, Addington, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1096&context=utk_workerscomp

WORKERS COMPENSATION: When Delgado, roofer who worked for

subcontractor, suffered injuries arising out of and in course and scope of his
employment as result of fall from roof of house at contractors worksite in
Tennessee, subcontractor had workers compensation insurance with
Liberty Mutual, and Liberty Mutual argued it only provided workers

compensation coverage for subcontractor in Georgia according to its

contract with subcontractor, Liberty Mutual is responsible insurance carrier
in case when Liberty Mutual did not have witness that could authenticate
contract, only proof in evidence indicated that Liberty Mutual provided
coverage for subcontractor in Tennessee, Certificate of Insurance listed
subcontractor with Tennessee address, subcontractors owner testified that
he bought workers compensation for coverage in Tennessee, and when
builder of home, Tennessee company, requested proof of insurance, Liberty
Mutuals agent sent it to builder in Tennessee. Delgado v. Valles Roofing,
4/28/15, Addington, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1097&context=utk_workerscomp

ATTORNEY GENERAL OPINION

GOVERNMENT: Passage of proposed bill, which would require state to
provide 90 days notice to each homeowner in established neighborhood or
residential area before opening any state-owned group home in
neighborhood or area to serve as residential facility for adults or children,
including persons with intellectual disabilities or children in custody of
Department of Childrens Services, could leave state vulnerable to legal
challenge under Americans with Disabilities Act. Attorney General
Opinion 15-56, 7/8/15, 3 pages.
http://attorneygeneral.tn.gov/op/2015/op15-56.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