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TAM-BYTES

February 8, 2016
Vol. 19, No. 6
TAM Webinars
Update on Living Wills, Advance Directives, and Powers of Attorney
for Health Care in Tennessee, 60-minute webinar presented by Terry
Cox, with Cox & Wortman in Collierville, on Wednesday, March 9, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Proving Defamation from Social Media Abuse: Strategies for Helping
Clients Respond, 60-minute webinar presented by Marcus Chatterton,
with Balch & Bingham in Birmingham, on Wednesday, March 16, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Handling Social Media, Email, and Other ESI in Tennessee, 60minute webinar presented by Russell Taber, with Riley Warnock &
Jacobson in Nashville, on Wednesday, March 16, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee Attorneys


*Now in its 9th year!*
WHEN: Friday, May 13
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: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;
Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood

HIGHLIGHTS: Recent developments in pre-suit notice and certificate of


good faith requirements; new summary judgment procedure; how to turn
the tables on a plaintiffs expert; defenses, such as patient negligence, that
may be raised to defeat a plaintiffs healthcare liability claim; trial tips and
tactics from both a plaintiffs and defense perspective; deposition strategies
to help you win at trial; using technology to excel as an advocate in a
healthcare liability case; review of recent healthcare liability appellate court
decisions; a panel discussion of hot topics in healthcare liability actions;
and ethical issues that arise when dealing with evidence and experts.

Tennessee Business Law Conference


*Now in its 2nd year!*
WHEN: Friday, May 20
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: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,
Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph
Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs
Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues that have arisen in the
Tennessee Business Court Pilot Project; creative practices for handling
business disputes to avoid litigation; mistakes to avoid in drafting LLC
operating agreements; what every attorney needs to know when litigating
a business dispute in Tennessee; what federal tax issues arise when
operating a limited liability company; key issues in drafting an acquisition
agreement; top 10 negotiation strategies for obtaining a settlement in a
business dispute; and ethics for attorneys in business disputes -- including
adequacy of fees and charges.
For more information or to register for any of our CLE events, call us at
(800) 274-6774 or visit www.mleesmith.com.

IN THIS WEEKS TAM-Bytes


Supreme Court modifies punishment imposed upon attorney based
upon two complaints of misconduct from one-year suspension, with
all but 30 days to be served on probation, to one-year suspension
with no probation;
Court of Appeals, in finding no coverage under automobile insurance
policy, finds that house sitter, who drove and had accident in
homeowners truck, did not have permission to drive truck;
Court of Appeals rules trial court abused discretion by relying solely
on Local Rule 19:00(H) of 28th Judicial District Chancery Court,
which sets personal representatives fee as percentage of value of
estate, to deny fee request;
Court of Appeals increases trial courts award of transitional alimony
to wife when wife has justified need to transition to time when she
may retire and draw her retirement resources; and
In case in which trial court granted defendants TRCP 12.02(6) motion
to dismiss plaintiffs action and entered judgment, pursuant to TCA
20-12-119(c), in favor of defendant for $10,000, statutory maximum,
Court of Appeals holds that, in explicitly drafting its cost bond in
accordance with TCA 20-12-120, surety limited its liability to court
costs and taxes as defined in TCA 20-12-120, rather than broader
umbrella of litigation costs as defined in TCA 20-12-119(c).

SUPREME COURT
PROFESSION OF LAW: In case in which attorney, who had been
practicing law over 10 years, was suspended from practice of law for one
year, with all but 30 days of suspension to be served on probation, as result
of two complaints of misconduct attorney disclosed client confidential
information to third party without clients informed consent, and attorney
engaged in sexual relationship with another client he had been appointed to
represent in criminal matter attorneys misconduct necessitates greater
punishment than that imposed by hearing panel; in light of fact that attorney
made sexual advances toward client, engaged in sexual relationship with
her, pled with her on one occasion to engage in sexual relationship after she
expressed her reluctance to do so, and continued to serve as her attorney,
attorney failed to safeguard trust of vulnerable client and exploited his
fiduciary role, and appropriate punishment is one-year suspension with no
probation. In re Vogel, 2/4/16, Nashville, Bivins, 4-0, 30 pages.
http://www.tncourts.gov/sites/default/files/vogelrobert.opn_.pdf

COURT OF APPEALS
TORTS: Trial court acted within its authority under TRCP 37.02 and 37.03
in ruling that plaintiffs in healthcare liability action would have no life care
planning expert at trial trial court excluded first expert and her life care
plan because her disclosure as expert was not timely and plaintiffs had not
sought leave of court to add her as expert, and trial court excluded
substituted expert because plaintiffs failed to submit full and complete
supplemental disclosure and were therefore in violation of courts order;
trial court did not err in granting summary judgment to defendant nurse
practitioner based upon lack of competence of plaintiffs expert,
neurosurgeon, to provide expert testimony regarding standard of care
applicable to nurse practitioners when expert did not practice with nurse
practitioners, was not familiar with their educational backgrounds, and was
not familiar with standard of care applicable to nurse practitioners; trial
court did not err in excluding plaintiffs only standard of care expert
because of plaintiffs failure to produce certain documents requested by
defendants in their deposition notice. Mikheil v. Nashville General
Hospital at Meharry 1/29/16, MS, Bennett, 16 pages.
http://www.tncourts.gov/sites/default/files/mikheilm.opn_.pdf

TORTS: Rationale in Himmelfarb v. Allain, 380 SW3d 35 (Tenn. 2012)


holding that defendants voluntary nonsuit in prior suit without prejudice
did not constitute favorable termination for purposes of subsequent
malicious prosecution claim applies equally whether case is dismissed
with or without prejudice; defendants dismissal of his prior federal action
defendant ultimately filed stipulation of dismissal with prejudice pursuant
to FRCP 41(a)(1)(A)(ii), and federal district court filed order dismissing
complaint with prejudice cannot establish, as matter of law, that federal
complaint was favorable termination for purposes of plaintiffs malicious
prosecution claim; because defendants voluntary dismissal of federal
complaint is not favorable termination on merits, plaintiffs cannot prove
essential element of their malicious prosecution claim. Fit2Race Inc. v.
Pope, 1/29/16, MS, Bennett, 9 pages.
http://www.tncourts.gov/sites/default/files/fit2race.opn_.pdf

EMPLOYMENT: In case which plaintiff, former administrator of assisted


living facility, filed suit under Tennessee Public Protection Act (TPPA),
claiming he was fired in retaliation for initiating internal investigation and
submitted internal report to his supervisors concerning incident that arose
when son of elderly resident observed old bandage stuck to bottom of his
mothers foot, which was revealed when her sock was removed in order to

check dressing for wound on her ankle, trial court properly dismissed TPPA
claim because leaving a bandage in a sock, where a patients wound is in
fact otherwise sufficiently bandaged, is not illegal activity as defined by the
statute, and leaving bandage in sock is not abuse and neglect as defined
by statute; trial court properly dismissed plaintiffs common law
whistleblower claim because plaintiff did not show that defendants engaged
in illegal conduct or in any way posed a threat to an important public
policy of the State when all that was done was to leave an old bandage in a
patients sock. Richmond v. Vanguard Healthcare Services LLC,
1/29/16, MS, Clement, dissent by Stafford, 21 pages.
http://www.tncourts.gov/sites/default/files/richmonddaniel.opn_.dis_.pdf

INSURANCE: When Robertsons house sitter and family friend (Dunlap)


used Mr. Robertsons truck, insured vehicle, on personal errand to pick up
friend, insured vehicle crossed center line of road, causing head-on collision
that killed three members of Dembla family, and insurer filed declaratory
judgment action seeking finding of no coverage under insurance policies
because Dunlap was driving insured vehicle without permission of insured,
trial court properly ruled there was no coverage under policies because
Dunlap had no express or implied permission to drive insured vehicle when
he took it; each link in chain of potential facts that could support finding of
coverage under terms of policies is missing or broken as there was no
evidence that would remove case from scope of general rule that second
permittee is not covered under motor vehicle insurance policy unless
second permittee had permission of named insured to operate covered
vehicle; evidence, including testimony that Robertsons let vehicle license
tag expire, suggests that they intended for no one to drive vehicle at time
that Dunlap took it; even assuming that Robertsons daughter was first
permittee, her statements to Dunlap that my house is your house, make
yourself at home, and use whatever you need, cannot reasonably be
interpreted under circumstances as including permission to use her parents
insured vehicle. Tennessee Farmers Mutual Insurance Co. v. Dunlap,
2/4/16, ES, Susano, 11 pages.
http://www.tncourts.gov/sites/default/files/tenn_farmers_v_dunlap.pdf

COMMERCIAL LAW: When plaintiffs purchased home from two of


defendants, contractor whose construction company built home and
contractors wife who had marketed home for sale, before and after sale,
plaintiffs identified several defects which they desired to have corrected,
some defects were remedied while others were not, plaintiffs filed suit, and
trial court awarded judgment for $2,000 in favor of plaintiffs against
construction company for breach of contract and judgment for $40,184
against estate of contractor and construction company for breach of
warranty, trial court did not err in holding that contractors wife was not

liable for either judgment in her individual capacity; there was no implied
partnership when wifes role during building of home was to choose certain
cosmetic features of home, such as color of brick and of roof, her choices
were only implemented if contractor approved them, she had no authority to
select subcontractors, materials, or workers who built house, and there was
no evidence that any profit was shared in such manner as to support
determination that implied partnership existed; evidence, taken as whole,
did not establish degree of control or other attributes necessary to hold that
implied joint venture existed between contractors wife and other
defendants. Webster v. Estate of Dorris, 2/4/16, MS, Dinkins, 17 pages.
http://www.tncourts.gov/sites/default/files/webster.charles.opn_.pdf

PROPERTY: In suit by tenant who had rented property for approximately


one year and was injured as result of fall when railing along stairs of
premises allegedly collapsed, trial court properly granted landlord summary
judgment when there was no evidence that stairs were defective at time
lease was executed; existence of loose bricks after accident only evinces
condition of foundation at that time, but not at any time prior to accident;
fact that stairs were used without incident for 11 months prior to accident
and were used, without incident, on very day of accident, negates tenants
tenuous and non-material proof that defect, if any, had existed during her
entire tenancy, but had remained dormant until day of accident. Fuller v.
Banks, 2/3/16, WS, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/fullermamieopn.pdf

ESTATES & TRUSTS: In case in which trial court denied personal


representatives fee after concluding that request did not comply with local
rule setting personal representatives fee as percentage of value of estate
(Local Rule 19:00(H) of Rules of Chancery Court, 28th Judicial District),
trial court employed incorrect legal standard in denying personal
representatives fee; Local Rule 19:00(H)s rule of thumb regarding fees
to be awarded to personal representative is antithetical to TCA 30-2606s requirement that fees be determined on case-by-case basis taking into
account more than simply size of estate; trial court abused discretion by
relying solely on Local Rule 19:00(H) to deny personal representatives fee
request, and on remand, trial court must consider all the relevant
circumstances, including extent of personal responsibilities rendered,
promptness and adequacy of services, and value of benefits conferred. In re
Estate of Young, 1/29/16, WS, Stafford, 10 pages.
http://www.tncourts.gov/sites/default/files/inreyoungmopn.pdf

FAMILY LAW: In case in which trial court awarded wife $350 per month
in rehabilitative alimony for 30 months, trial court erred by then granting
mother additional form of rehabilitative alimony under which husband was

required to pay for mothers left over educational expenses when linking
fathers responsibility to left over amounts diminishes fathers obligation
under order, and absence of amount limitation with respect to this provision
means that fathers duty to support could potentially be incommensurate with
his financial ability to pay; trial courts award to mother of $350 per month in
rehabilitative alimony for 30 months is more than sufficient to provide for
mothers rehabilitative efforts as mother seeks to obtain surgical technician
assistant degree. Tidwell v. Tidwell, 2/2/16, MS, Goldin, 15 pages.
http://www.tncourts.gov/sites/default/files/tidwell.christopher.opn_.pdf

FAMILY LAW: Trial court did not abuse discretion by adjusting tax
deductions before calculating mothers gross income for child support due
or by allowing her credit for support in kind and purchases of necessities.
Kernan v. Nabors, 2/1/16, ES, McClarty, 15 pages.
http://www.tncourts.gov/sites/default/files/kernan2opn.pdf

FAMILY LAW: Evidence preponderated against trial courts award to wife


of transitional alimony of $2,200 for 40 months when wife, 58, suffers from
health problems, including neck condition, husbands net pay, at low end, of
$120,000 to $160,000 per year is materially higher than wifes income, and
wifes portion of marital estate, while significant, included many non-liquid
retirement assets; because wife has justified need to transition to time when
she may retire and draw her retirement resources, wifes transitional alimony
award is increased to $4,000 per month for 40 months from $2,200 per
month. Folger v. Folger, 1/28/16, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/folgersopn.pdf

FAMILY LAW: In case in which wife, at time of divorce in 2005, was


awarded $8,000 per month in transitional alimony for five years, followed
by payments of $7,500 per month as alimony in futuro for five years, in
2014, wife filed petition seeking to increase and extend husbands alimony
in futuro obligation, and trial court found change in circumstances
warranting modification of alimony and ordered husband to continue to pay
wife alimony in futuro of $6,200 per month beginning in 1/15 and
continuing for six years or until his retirement, whichever occurred later,
evidence did not support trial courts finding of substantial and material
change in circumstances when husbands increased income since divorce
was insufficient to constitute material change in circumstances, and there
was no evidence to support trial courts finding that recession had a
significant impact on wifes employability; given fact that wife has made
little effort to find greater source of income or to set aside portion of
income she had received since divorce wife has instead continued to
invest great deal of her time, energy, creativity, and resources into writing
childrens books and organizing cotillion programs and while this court

does not intend to discourage wife from engaging in whatever creative or


artistic pursuits she desires, husband should not be forced to bear financial
consequences of wifes decisions; since husband has fully complied with
his obligation under parties original agreement, his alimony in futuro
obligation should not be extended. Pembroke v. Cooley, 1/29/16, WS,
Goldin, 15 pages.
http://www.tncourts.gov/sites/default/files/pembrokecooleyreneeopn.pdf

CIVIL PROCEDURE: In case in which trial court granted defendants


TRCP 12.02(6) motion to dismiss plaintiffs action and entered judgment,
pursuant to TCA 20-12-119(c), in favor of defendant in amount of $10,000,
statutory maximum, against plaintiff and her surety, under terms of cost bond
filed, surety limited its liability to costs as defined in TCA 20-12-120 and is
therefore not liable for $10,000 in fees awarded to defendant for litigation
costs if plaintiff fails to satisfy judgment; in explicitly drafting its cost bond
in accordance with TCA 20-12-120, surety limited its liability to court
costs and taxes as defined in TCA 20-12-120, rather than broader umbrella of
litigation costs as defined in TCA 20-12-119(c); pursuant to plain language
of TCA 20-12-119(c) and 20-12-120, cost bond, as drafted and filed in this
case, did not commit surety to liability for court reporters fee and attorneys
fee. Snyder v. First Tennessee Bank N.A., 2/3/16, ES, Frierson, 17 pages.
http://www.tncourts.gov/sites/default/files/snyder_opinion_final.pdf

GOVERNMENT: When Claims Commission awarded inmate $439 for artsand-crafts supplies that inmate was required either to mail out of prison or
donate pursuant to policy of Turney Center, because inmates claims were for
intentional acts, and proof showed only intentional acts, not negligent ones,
Claims Commission lacked jurisdiction to hear inmates claim, rendering
judgment void. Patterson v. State, 2/3/16, ES at Nashville, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/pattersonb.opn_.pdf

COURT OF CRIMINAL APPEALS


EVIDENCE: In case in which defendant was convicted of rape of child and
three other sexual offenses against his daughter, trial judge did not err by
permitting victim to testify about portions of self-journal on depression and
anxiety that victim composed as part of her treatment at behavioral health
center (Lakeside); because defendant impeached victim with allegedly
inconsistent statements about what her father did to her, which were made
during her stay at Lakeside, state was entitled to introduce those statements to
show that they were actually consistent, rather than inconsistent, with
victims trial testimony; although there were few instances when prosecutor
asked victim about entries in self-journal which related to her feelings about

what happened to her and why she was troubled these statements lean more
toward improper bolstering to rebut cross-examination on victims motive to
fabricate allegations, which would violate general rule against using prior
consistent statements to rebut impeachment any error in introduction of
those statements was harmless and did not rise to level of plain error. State v.
Pilate, 1/29/16, Jackson, Easter, 20 pages.
http://www.tncourts.gov/sites/default/files/pilatedaetrusopn_0.pdf

CRIMINAL PROCEDURE: In drug case, trial judge did not err by


admitting into evidence photographs and text messages from defendants cell
phone even though this evidence was not provided to defense counsel under
morning of trial; any error committed by state in failing to provide defendant
with photos and text messages was harmless when defense counsel conceded
that defense was aware that defendants cell phone had been seized and that
he was not surprised that phone contained text messages and photos, and
defendant has failed to show how he was prejudiced by discovery delay
defense counsel was able to thoroughly cross-examine investigator and even
used some of text messages to show that although defendant was aware that
officers were outside his home, he did not attempt to dispose of illegal
substances. State v. Kincaid, 1/28/16, Jackson, Page, 12 pages.
http://www.tncourts.gov/sites/default/files/kincaiddouglasopn.pdf

SIXTH CIRCUIT COURT OF APPEALS


COMMERCIAL LAW: When plaintiffs loan went into default and
defendant creditor filed action in state court, which set court date for
10/6/10, parties settled matter, defendant did not affirmatively dismiss state
court action and state court entered default judgment against plaintiff on
10/6/10, plaintiff learned about default judgment when she applied for loan
and noticed judgment on her credit report, plaintiff contacted defendant
who moved to set aside judgment, judgment was removed, credit agencies
removed judgment from credit reports within six months of courts
corrective action, and plaintiff filed suit against defendant and its affiliates
on 9/27/12, district court properly ruled that claim under Fair Debt
Collection Practices Act was barred by statute of limitation; district court
properly held that plaintiffs state law claim for abuse of process was barred
under Tennessees one-year statute of limitation; plaintiffs state law claims
for fraud and breach of contract were not preempted; no fraud occurred, but
reasonable person could find that defendant breached contract by failing to
cease all legal action against plaintiff when it did not dismiss action; grant
of summary judgment on breach of contract claim is reversed. Lloyd v.
Midland Funding LLC, 1/22/16, Sutton, 10 pages. N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0043n-06.pdf

COURT OF WORKERS COMPENSATION CLAIMS


WORKERS COMPENSATION: When Mark Conard d/b/a Marcon
Builders (Marcon) hired Wallace to perform carpentry/construction work
on new home construction and home renovations, Conard paid Wallace
weekly, initially $12 per hour and later $13 per hour, Conard passed out
one-page form to crew members to complete, Conard took information
from form and completed online application for workers compensation
exemption registry for various Marcon employees, including Wallace, and
on 1/15/15, while working on project for Marcon, Wallace fell from ladder
and injured his ankle, Conard inappropriately applied for exemption
registry on Wallaces behalf, and Wallace is not exempt from Workers
Compensation Law; Marcon failed to establish that Wallace was
independent contractor, rather than employee, when Wallace testified that
Marcon paid him by hour on weekly basis and that Conard told him when
to arrive at work and when he could leave, Conard and his supervisor
directed daily work to be performed, Wallace brought his tool bag to job
site but no other equipment, and Wallace was not allowed to bring any
helpers with him to job site. Wallace v. Conard, 9/18/15, Knott, 14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1182&context=utk_workerscomp

WORKERS COMPENSATION: When worker, housekeeper at hotel,


slipped on water and fell in lobby as she walked to laundry room to pick up
linen for bedroom she was cleaning, and worker received her paycheck
from Profit Line Services, Inc., which had service agreement with hotel for
the provision of housekeeping, or other such jobs or tasks agreed
upon, Profit Line did not prove worker was independent contractor, rather
than employee, when supervisor at hotel controlled all aspects of work and
provided all cleaning supplies, equipment, and uniforms she used, even
though Profit Line did not deduct withholding and Social Security taxes
from workers paychecks; worker will likely establish she broke her left
wrist in performance of housekeeping duties Profit Line hired her to
perform; when worker gave Profit Line reasonable opportunity to provide
authorized treatment, but it failed to avail itself of that opportunity, worker
reasonably sought necessary care on her own, and Profit Line must pay for
left-wrist treatment worker has received to date; because record is silent as
to whether worker worked after her injury, claim for temporary disability
benefits is denied. Kleeberg v. Profit Line Services Inc., 9/23/15,
Chattanooga, Wyatt, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1175&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