TAM-BYTES

July 10, 2017

Vol. 20, No. 28

TAM Webinars

Parental Relocation in Tennessee: The Impact of the Aragon

Decision, 60-minute webinar presented by Kevin Shepherd, with
Shepherd and Associates PC in Maryville, on Wednesday, August 9, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/relocation-080917
or call us at (800) 727-5257.

2017 Tennessee DUI Defense Update: Attorney Tips for the Best
Possible Outcome, 60-minute webinar presented by Joseph Fuson,
with Freeman & Fuson in Nashville, on Thursday, August 10, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/dui-081017
or call us at (800) 727-5257.

Trump and Immigration: The Essential Attorney Update, 60-minute

webinar presented by Terry Olsen, with Olsen Law Firm in Chattanooga,
on Wednesday, August 23, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/immigration-082317
or call us at (800) 727-5257.

Proving Damages in Tennessee: How to Present Evidence and

Command Jury Attention, 60-minute webinar presented by John
Dunlap, Memphis attorney, on Thursday, August 24, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/damages-082417
or call us at (800) 727-5257.
Divorce in Tennessee: Essential First Steps for Attorneys, 60-
minute webinar presented by Kevin Shepherd, with Shepherd and
Associates PC in Maryville, on Thursday, August 31, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/divorce-083117
or call us at (800) 727-5257.

Helping Clients Market and Collect Via Telephone: TCPA Update

for Attorneys, 60-minute webinar presented by David Esquivel &
Elaina Al-Nimri, with Bass, Berry & Sims in Nashville, on Thursday,
September 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/tcpa-090717
or call us at (800) 727-5257.

On-Site Events
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.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile

insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
 substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

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/tn-personal-injury-law or call (800) 727-5257.

12th annual
Family Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, OCTOBER 12-13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn

Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District (Montgomery and Robertson counties); Marlene Eskind Moses, MTR
Family Law, Nashville; Phillip R. Newman, Puryear, Newman & Morton, Nashville;
Judge Phillip Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville
attorney; Greg Smith, Stites & Harbison, Nashville; Scott Womack, Lattimore Black
Morgan & Cain, Nashville; and Judge Thomas Wright, circuit court, 3rd Judicial District
(Greeene, Hamblen, Hancock & Hawkins counties)

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;

David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District (Hickman, Lewis, Perry, and Williamson counties); Chancellor
Jerri S. Bryant, chancery court, 10th Judicial District (Bradley, McMinn, Monroe, and
Polk counties); Judge Robert L. Childers, retired circuit court judge, Shelby County;
Dawn Coppock, Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick &
York, Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry
McMillan, chancery court, 19th Judicial District (Montgomery and Robertson counties);
Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R. Newman, Puryear,
Newman & Morton, Nashville; Judge Phillip Robinson, circuit court, Davidson County;
 Kevin Shepherd, Maryville attorney; Eileen Burkhalter Smith, Disciplinary Counsel,
Board of Professional Responsibility; and Greg Smith, Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital

property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

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

10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Supreme Court holds that plaintiff need not provide HIPAA-

compliant authorization when single healthcare provider is given pre-
suit notice of healthcare liability claim;
Court of Appeals, in termination of parental rights case, holds fact that
fathers name appears on childrens birth certificates does not, ipso
facto, satisfy requirement of unrevoked and sworn acknowledgements
of paternity, but that recordation of father on childrens birth
certificates does provide father with status of putative father;
Court of Appeals says evidence preponderated against termination of
mothers parental rights on ground of substantial non-compliance with
requirements of permanency plans when, although mothers inability
to remain sober prevented safe integration of child into her life, focus
is on parents efforts to comply with plan, not achievement of plans
desired outcomes;
Court of Criminal Appeals urges Tennessee Supreme Court to address
issue of whether passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner is
element of crime of voluntary manslaughter; and
Court of Criminal Appeals rules term process in TCA 39-17-1007,
which requires that process be issued upon application of district
attorney, does not include search warrant.
SUPREME COURT

TORTS: Based on language of TCA 29-26-121(a)(2)(E), plaintiff need not

provide HIPAA-compliant authorization when single healthcare provider is
given pre-suit notice of healthcare liability claim; HIPAA does not require
defendant doctor to obtain medical authorization to use patients medical
records in his possession and consult with counsel to evaluate merits of
potential claim. Bray v. Khuri, 7/5/17, Jackson, Lee, unanimous, 7 pages.
http://www.tncourts.gov/sites/default/files/braydeborah.opn_.pdf

COURT OF APPEALS

FAMILY LAW: In termination of parental rights case, trial court properly

found that father is not legal father to children because he presented no
evidence that he executed unrevoked and sworn acknowledgments of
paternity, and fact that his name appears on childrens birth certificates does
not, ipso facto, satisfy requirement of unrevoked and sworn
acknowledgments of paternity; recordation of father on childrens birth
certificates does provide father with status of putative father whose parental
rights shall be terminated by surrender, parental consent, termination of
parental rights pursuant to [TCA] 36-1-113, or by waiver of interest before
the court may enter an order of adoption concerning [the Children]. In re
Braxton M., 7/5/17, Knoxville, Frierson, 36 pages.
http://www.tncourts.gov/sites/default/files/in_re__braxton_m._et_al..pdf

FAMILY LAW: Evidence preponderated against termination of mothers

parental rights on ground of substantial non-compliance with requirements
of permanency plans when, although mothers inability to remain sober
prevented safe integration of child into her life, focus is on parents efforts to
comply with plan, not achievement of plans desired outcomes; although
question is close one, because mother completed each task on first and
second permanency plans, and she was in compliance with most of
important tasks under permanency plans she submitted to required
assessments, treatments, and individual counseling in effort to address her
substance abuse and mental health issues evidence preponderated against
trial courts findings with regard to this ground for termination of mothers
parental rights; evidence supported termination of mothers parental rights
on ground of abandonment by wanton disregard for childs welfare. In re
Zane W., 7/6/17, Knoxville, Stafford, 23 pages.
http://www.tncourts.gov/sites/default/files/in_re__zane_w..pdf
GOVERNMENT: In case in which individual previously convicted of
felony drug offense petitioned for restoration of his citizenship rights, and
trial court restored all his citizenship rights except right to bear arms, trial
court properly concluded that TCA 39-17-1307(b), which makes it offense
for certain persons to possess firearm, prohibited court from restoring right
to bear arms; person convicted of felony drug offense involving Schedule II
controlled substance may not have right to bear arms restored under
Restoration Statute, TCA 40-29-101 et seq. Fisher v. State, 7/3/17, Jackson,
McBrayer, 5 pages.
http://www.tncourts.gov/sites/default/files/fishermichaelopn.pdf

COURT OF CRIMINAL APPEALS

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

degree murder, attempted second degree murder, and employing firearm
during commission of dangerous felony in connection with death of victim
and her unborn child, because trial court committed prejudicial error by
excluding as hearsay certain witness testimony, i.e., testimony of
defendants aunt regarding statements made by victim, and because this
exclusion violated defendants constitutional right to present defense,
defendants convictions are reversed, and case is remanded for new trial;
Tennessees fetal homicide statute is not unconstitutionally broad and does
not violate defendants right to equal protection; second degree murder is
lesser included offense of first degree murder; Tennessee Supreme Court is
urged to again address issue of whether passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational
manner is element of crime of voluntary manslaughter. Editors note: Judge
Ogle joined in Judge Woodalls concurrence. State v. Donaldson, 7/6/17,
Knoxville, Witt, concurrence by Woodall, 38 pages.
http://www.tncourts.gov/sites/default/files/brandon_donaldson_opinion.pdf

CRIMINAL PROCEDURE: Because General Assembly included TCA

39-17-1007, which requires that process be issued upon application of
district attorney, near end of Sexual Exploitation of Minors Act (Act)
between injunction and forfeiture provisions, legislature intended issuance of
process in TCA 39-17-1007 to refer to Acts injunction and forfeiture
provisions, and as such, term process as used in TCA 39-17-1007 does not
include search warrant; trial court properly denied defendants motion to
suppress evidence obtained during search of his home search was based
upon search warrant obtained by investigator with sheriffs office, not
district attorneys office given fact that search warrant was valid under
TCA 39-17-1007 when investigators application fell under except as
otherwise provided clause because law enforcement is authorized to apply
for search warrants under TRCrP 41(a). State v. Miller, 7/3/17, Knoxville,
Holloway, 12 pages.
http://www.tncourts.gov/sites/default/files/anthony_jerome_miller_opinion.pdf

SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: In suit by FDIC to recover damages for breach of

contract in connection with defendants defaulted loan, although defendant
argues there is virtually no evidence that could support FDICs contention
that note in favor of Citizens Corporation (Citizens) was delivered with
intent to give bank right to enforce it, duly executed assignment provides
overwhelming evidence that delivery of note from Citizens to bank was for
purpose of giving bank right to enforce note; while assignment clearly gives
bank ownership rights in note, it does not necessarily meet requirements to
complete transfer of enforcement rights under TCA 47-3-203(a), when there
is contract between parties that unambiguously states unqualified intent of
parties to transfer all right, title, and interest in plaintiffs loan to bank,
parties intent at time of contracting is exceedingly strong evidence
regarding their intent at time of delivery. Federal Deposit Insurance Corp.
v. Ashmore, 7/3/17, Keith, 16 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0392n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee, painter, testified that

he saw younger, recently hired co-worker using drugs on job, employee
confronted co-worker regarding his alleged drug use, verbal interaction
escalated, co-worker threw paint roller at employee, and employee claimed
roller struck right side of his face and that his right hand was fractured when
he raised it to block roller, evidence supports finding that employee and co-
worker engaged in private or non-work-related dispute; while if one
employee confronts another over safety concern, as employee alleges he did
over co-workers perceived drug use, then altercation could be dispute over
job performance, but there was no evidence, apart from employees
supposition, that co-worker used or possessed drugs. Cole v. M & D
Coatings, 4/24/17, Memphis, Phillips, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1787&context=utk_workerscomp

REVENUE RULINGS

TAXATION: Application of Tennessee franchise and excise taxes to for-hire

trucking company. Department of Revenue Ruling 17-08, 6/21/17, 4 pages.
http://www.tn.gov/assets/entities/revenue/attachments/17-08fe.pdf

TAXATION: Application of Tennessee sales and use tax to engineering,

procurement, and construction of fiber-to-the-home network
infrastructure. Department of Revenue Ruling 17-09, 6/21/17, 4 pages.
http://www.tn.gov/assets/entities/revenue/attachments/17-09.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