TAM-BYTES

April 17, 2017

Vol. 20, No. 16

TAM Webinars

Immigration Issues and Juvenile Law in Tennessee Mastering the

SIJ Program and More, 60-minute webinar presented by Terry
Olsen, with The Olsen Law Firm in Chattanooga, on Wednesday, June
7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-060717
or call us at (800) 727-5257.

Business Divorce Update: Best Practices for Effective Client

Counsel, 60-minute webinar presented by Richard Spore, with Bass,
Berry & Sims in Memphis, on Wednesday, June 14, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/business-divorce-061417
or call us at (800) 727-5257.

Intellectual Property Laws in Business Transactions: Key

Considerations for Attorneys, 60-minute webinar presented by Kelly
Frey, with Frost Brown Todd in Nashville, on Thursday, June 15, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/intellectual-061517
or call us at (800) 727-5257.

Key Elements of Wills in Tennessee, 60-minute webinar presented

by Julie Travis Moss, with The Blair Law Firm in Brentwood, on
Thursday, June 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/wills-061517
or call us at (800) 727-5257.
Injury Damages in Tennessee: Whats the Extentand How to
Prove it, 60-minute webinar presented by Stephen R. Leffler, with
The Law Office of Stephen R. Leffler in Memphis, on Thursday, June
22, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-062217
or call us at (800) 727-5257.

Police Liability Defense Update: Section 1983, Excessive/Deadly

Force, and More, 60-minute webinar presented by Mark McGrady,
with Farrar & Bates in Nashville, on Tuesday, June 27, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/police-liability-062717
or call us at (800) 727-5257.

On-Site Event
Personal Injury Law Conference for Tennessee Attorneys
*Expanded to 2 days this year*

WHEN: THURSDAY & FRIDAY, SEPTEMBER 21-22

WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties); Chancellor
Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge Walter Kurtz,
former Davidson County Circuit judge/former Tennessee senior judge; Laura Baker, Law
Offices of John Day, Brentwood; Brandon Bass, Law Offices of John Day, Brentwood; J.
Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett, Batson Nolan, Clarksville;
James Exum, Leitner, Williams, Dooley & Napolitan, Chattanooga; Steve Gillman, Pryor,
Priest, Harber, Floyd & Coffey, Knoxville; Michael H. Johnson, Howard, Tate, Sowell,
Wilson, Leathers, & Johnson, Nashville; Mary Ellen Morris, Kinnard, Clayton & Beveridge,
Nashville; Bryan Moseley, Moseley & Moseley, Murfreesboro; William J. Rieder, Spears,
Moore, Rebman & Williams, Chattanooga; and Melanie Stewart, Heaton & Moore,
Memphis.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court, in workers compensation case in which employee

failed to take his medication in accordance with his doctors
instructions, rules that employees death was no longer causally
related to his work-related injury and that his overdose was
independent intervening cause;
Workers Comp Panel rules employees token tasks for her own
cleaning company while unable to work for employer did not
disqualify her from receiving temporary total disability benefits;
In case in which husband filed suit against wife seeking retroactive
child support, Court of Appeals holds trial court erred in calculating
amount of support wife owed by using Child Support Guidelines that
were in effect at time wifes child support obligation was incurred
rather than those in effect at time of trial;
Court of Appeals says that right to public education does not include
particular course placement, teaching method, or classroom teacher;
Court of Criminal Appeals says that under terms of Stored
Communications Act, defendants cannot obtain contents of electronic
communications, i.e., cellular telephone and/or social media
information, from any service providers via TRCrP 17 subpoena
duces tecum;
Court of Criminal Appeals rules that in light of holding in State v.
Bonds that portions of criminal gang enhancement scheme violated
substantive due process and were facially unconstitutional, trial court
committed plain error by improperly applying criminal gang
enhancement to defendants two convictions; and
Court of Criminal Appeals affirms trial courts refusal to require
defendant to register as sex offender when 82-year-old defendant,
after groping his 25-year-old neighbors crotch, entered plea of nolo
contendere to offense of sexual battery and was placed on judicial
diversion, with prosecution deferred during period of 18 months of
supervised probation.

SUPREME COURT

WORKERS COMPENSATION: When employee sustained several

work-related injuries from motor vehicle accident, he underwent cervical
spine surgery to resolve his neck injury complaints, his authorized physician
also recommended lumbar spine surgery to combat his back pain, but that
request was denied through utilization review process, employee took
oxycodone to alleviate his back pain, his treating physician referred him to
pain management clinic, and employee died six months after cervical spine
surgery due to overdose of oxycodone combined with alcohol, evidence
preponderated against trial courts findings that employees death was direct
and natural consequence of his work injury; when employee failed to take
his medication in accordance with his physicians instructions, which
ultimately caused his demise, his death was no longer causally related to his
work-related injury, and his overdose was independent intervening cause.
Kilburn v. Granite State Insurance Co., 4/10/17, Nashville, Page,
unanimous, 10 pages.
http://www.tncourts.gov/sites/default/files/kilburn.judy_.opn_.pdf

GOVERNMENT: Standard of review under Teacher Tenure Act is not

standard applicable to common law writ of certiorari; instead, standard of
review specified in TCA 49-5-513 is intended to permit chancery court to
address intrinsic correctness of school boards decision. Emory v. Memphis
City Schools Board of Education, 3/28/17, Jackson, Kirby, 4-0, 31 pages.
http://www.tncourts.gov/sites/default/files/emoryrogelynn._order_and_opn.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee became franchisee of

employer, commercial cleaning franchise, under arrangement, employee
paid fee and employer recruited cleaning jobs for employee, in addition to
her cleaning jobs through employer, employee independently sought out and
cleaned eight or nine buildings, employee personally cleaned buildings
recruited by employer but hired out independently-obtained cleaning jobs,
employee injured her shoulder while using commercial mop at job recruited
by employer, she obtained temporary total disability benefits from employer,
and employer claimed employee was not entitled to temporary benefits
because she worked for her own company while unable to work for
employer, trial court did not err in denying employers requested credit
against permanent partial disability award; evidence did not preponderate
against trial courts finding that, during relevant time period, employee
performed only nominal tasks for her company when trial court found any
tasks performed by employee on behalf of her company were merely token
in nature and that her extremely limited contact with business included little
more than occasional phone call or paper work necessary just to sustain
business continued existence; employees performance of token tasks did
not disqualify her from receiving temporary total disability benefits. Tansil
v. Atkinson Enterprises Inc., 4/12/17, Nashville, Ash, 13 pages.
http://www.tncourts.gov/sites/default/files/thompsonv.ups_.opn_.pdf

WORKERS COMPENSATION: When employee sustained compensable

injury as result of co-worker running over back of his left foot with forklift,
employee received temporary disability benefits and medical benefits from
employer, employees treating physician assigned 20% permanent
anatomical impairment to leg, employer sought second opinion, employers
physician opined that employee had sustained 5% permanent impairment to
leg, employer requested evaluation through MIR program, and MIR
physician opined that employee had sustained 5% permanent impairment to
leg, trial court erred in finding that MRI physicians opinion was
successfully rebutted by treating physicians testimony; while treating
physician based his impairment rating on dysfunction of both sural and
saphenous nerves, and MIR physician assigned no impairment for
dysfunction of saphenous nerve, evidence presents disagreement between
medical expert witnesses as to proper diagnosis of employees condition,
which does not constitute clear and convincing evidence needed to
overcome statutory presumption of accuracy afforded MIR physicians
impairment rating; while MIR physician used diagnosis-based method for
assigning impairment rating for employees crush injury, and treating
physician used range-of-motion method, treating physicians testimony
failed to raise serious or substantial doubt about accuracy of MIR
physicians evaluation, which is necessary to overcome statutory
presumption of correctness attached thereto. Williams v. Ajax Turner Co.,
4/12/17, Nashville, Ash, 12 pages.
http://www.tncourts.gov/sites/default/files/williams-ajax_turner.opnjo_.pdf

COURT OF APPEALS

INSURANCE: When plaintiffs filed claim for fire loss following fire that
destroyed their mobile home, and trial court granted summary judgment in
favor of plaintiffs on issue of liability and held bench trial on issue of
damages, evidence did not support trial courts award of only $65,000 for
mobile home because of depreciation when plaintiffs expert witness did not
believe that mobile home had depreciated in value in light of number of
improvements that were made to home and when tax card listing annual
depreciation rate of 3.91% also listed depreciated value of same mobile
home at $84,348; trial courts award of $65,000 is modified to $69,000 in
accordance with policy limits; trial courts award of $34,500 in accordance
with limit on personal property coverage was supported by evidence when
plaintiff wife testified that property was worth $92,000; policys coverage
for additional living expenses did not extend to additional living expenses
Laynes incurred as result of plaintiffs family moving in with them when
policy endorsement provided that Laynes were additional insureds under
policy but did not list coverage for Additional Living Expenses; trial court
did not err in awarding plaintiffs bad faith penalty when insurer did not have
substantial legal grounds supporting its position that plaintiffs materially
misrepresented number of mortgages on insured mobile home and insurer
compounded problem by failing to process plaintiffs claim in diligent
manner; trial court did not abuse discretion in awarding 15% penalty, rather
than 25%, when plaintiffs incurred around $16,000 in attorney fees and
statutory penalty of 15% equated to award of $15,300. Burge v. Farmers
Mutual of Tennessee, 4/13/17, Nashville, Gibson, 17 pages.
http://www.tncourts.gov/sites/default/files/burge.brandi.opn_.pdf

FAMILY LAW: In case in which husband filed suit against wife seeking
retroactive child support, and trial court found that wife owed husband child
support and calculated amount of support wife owed by using Child Support
Guidelines (Guidelines) that were in effect at time wifes child support
obligation was incurred rather than those in effect at time of trial, trial court
did not employ proper Guidelines to calculate wifes child support
obligation; case is remanded with instructions for trial court to re-calculate
child support using Guidelines in effect at time of trial, i.e., income shares
model, which take husbands income into account when establishing wifes
child support obligation and would not include alimony that wife received
from husband for purposes of determining her income. Maher v. Woodruff,
4/13/17, Nashville, Gibson, 10 pages.
http://www.tncourts.gov/sites/default/files/maher.cheryl.opn_.pdf

GOVERNMENT: Right to public education does not include particular

course placement, teaching method, or classroom teacher; fact that student
was excluded from type of education that student thinks is best, i.e.,
teacher vs. computer, is not within purview of Due Process Clause of
Fourteenth Amendment students constitutional rights were not violated by
being removed from her Algebra I class and placed in computer-based
course, i.e., remedial credit recovery program. Jones v. Metropolitan
Government of Nashville, 4/13/17, Nashville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/jones.toni_.opn_.pdf
COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendants were charged with two counts

each of aggravated rape, and defendants issued subpoenas duces tecum to
various electronic communications service providers seeking specified
cellular telephone and social media communications and information, trial
court properly denied states motion to quash these subpoenas when state
lacked standing to challenge these subpoenas; under terms of Stored
Communications Act (SCA), 18 USC 2701 to 2703, defendants cannot
obtain contents of electronic communications from any of service providers
via TRCrP 17 subpoena duces tecum; to obtain any information, other than
basic subscriber and transactional information, which could be obtained with
administrative subpoena, defendants had to show that (1) defendant in
criminal case qualifies as governmental entity under terms of SCA and (2)
that subpoena and order issued satisfies requirements of 18 USC 2703; SCA
is applicable to communications shared on social media websites, and had
issue been justiciable, defendants could not obtain any information directly
from social media providers under terms of SCA because they do not meet
definition of governmental entity. State v. Johnson, 4/12/17, Knoxville,
Witt, 46 pages.
http://www.tncourts.gov/sites/default/files/johnsonandwilliamsopn.pdf

CRIMNAL LAW: In light of holding in State v. Bonds, 502 SW3d 118

(Tenn.Cr.App. 2016), i.e., that portions of criminal gang enhancement
scheme violated substantive due process and were facially unconstitutional,
trial court committed plain error by improperly applying criminal gang
enhancement to defendants two convictions for possession of cocaine with
intent to sell or deliver and his conviction of unlawful possession of weapon;
defendant is entitled to benefit of ruling in Bonds because his case was
pending on direct appeal at time Bonds was decided; facts in case reveal one
of primary flaws posed by criminal gang enhancement statute that lacks
requirement of nexus between underlying criminal offense and defendants
gang affiliation offenders punishment is increased based on his
connection to other individuals rather than on individualized consideration
of nature of crime or offenders personal characteristics; pursuant to Drug-
Free School Zone Act (TCA 39-17-432(b)(3)), committing charged offenses
within 1,000 feet of preschool results only in increased fine it does not
authorize additional incarceration. State v. Turner, 4/13/17, Knoxville,
Easter, 15 pages.
http://www.tncourts.gov/sites/default/files/ronald_turner_opinion.pdf
CRIMINAL PROCEDURE: In case in which defendant was convicted of
rape of child, trial court did not err in denying his motion to suppress his
pretrial statement when although defendants proficiency in language was
lacking, his command of English allowed him to understand Miranda
warnings, and his limited proficiency did not prevent him from making
knowing, voluntary, and intelligent waiver of his constitutional rights;
language difficulties encountered by defendant are considered in
determining if there has been valid waiver. State v. Cruz, 4/17/17, Nashville,
Witt, 14 pages.
http://www.tncourts.gov/sites/default/files/yelsin_cruz.pdf

CRIMINAL SENTENCING: In case in which 82-year-old defendant, after

groping his 25-year-old neighbors crotch, entered plea of nolo contendere
to offense of sexual battery and was placed on judicial diversion, with
prosecution deferred during period of 18 months of supervised probation,
trial court did not err in refusing to require defendant to register as sexual
offender under Tennessee Sexual Offender and Violent Sexual Offender
Registration, Verification and Tracking Act of 2004 (Act); given defendants
health (he had recently undergone gallbladder surgery and was taking
variety of medications for heart and blood problems), circumstances of
offense (defendants wife of 52 years had passed away two years prior to
offense, defendants grief had affected his personality, he began to abuse
alcohol and Xanax that his doctor had prescribed for insomnia, and he had
since enrolled in substance abuse program), and likelihood that defendant
would not re-offend (test administered to defendant to determine his
propensity for recidivism as sexual offender placed defendant in medium to
low risk category for re-offending), trial courts decision not to require
defendant to register under Act, which would effectively displace defendant
from his home, was reasonable; language of Act defining conviction as
including persons placed on judicial diversion is confusing, vague, and
ambiguous, and as such, principles of notice, legality, and due process
further support trial courts decision not to require defendant to register as
sex offender. State v. Townsend, 4/13/17, Jackson, McMullen, 9 pages.
http://www.tncourts.gov/sites/default/files/townsendwalteropn.pdf

PUBLIC CHAPTER

CRIMINAL LAW: State law preempts local government enactments with

respect to regulation of and appropriate sanctions for drug conduct. 2017 PC
124, effective 4/12/17, 2 pages.
http://publications.tnsosfiles.com/acts/110/pub/pc0124.pdf
COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: TCA 50-6-204(a)(6)(A) provides that

when employee is required to travel to authorized medical provider or
facility outside radius of 15 miles from employees residence or workplace,
employee might be reimbursed for either her mileage expenses from home
or her mileage expenses from her workplace, not lesser of two; it was
reasonable for employee to try to set her appointments with her approved
providers on days she was not scheduled to work at her new job, and,
according to statute, employee may receive reasonable reimbursement for
mileage expense from either her home or workplace and choosing to earn
wage is reasonable and should not lessen her recovery. Ricks v. Methodist
Healthcare, 1/30/17, Memphis, Phillips, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1707&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