TAM-BYTES

October 16, 2017

Vol. 20, No. 42

TAM Webinars

Defending a Suit Under the Governmental Tort Liability Act, 60-

minute webinar presented by Emily Taylor, with Watson, Roach, Batson,
Rowell & Lauderback in Knoxville, on Wednesday, November 30, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/gtla-111517
or call (800) 727-5257

Jury Selection: The Art of Asking the Right Questions, 60-minute webinar
presented by Emily Taylor, with Watson, Roach, Batson, Rowell & Lauderback
in Knoxville, on Thursday, December 7, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/jury-120717
or call (800) 727-5257

Legal Ethics Update: Cloud Computing, Mobile Technology, and Other

Law Practice Challenges, 60-minute webinar presented by Russell Belk,
with Sutherland & Belk in Nashville, on Wednesday, December 13, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/ethics-121317
or call (800) 727-5257

Attorney ESI Update: How to Uncover and Use Social Media Evidence
for Maximum Case Benefit, 60-minute webinar presented by Marcus
Chatterton, with Balch & Bingham in Birmingham, on Wednesday,
December 13, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/social-121317
or call (800) 727-5257

Cyber-Theft and Data Breaches: What to Do When Your Tennessee

Client is Hacked, 60-minute webinar presented by Russell Taber, with
Riley, Warnock & Jacobson in Nashville, on Thursday, December 14, at 2
p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cyber-121417
or call (800) 727-5257
 Tips for Investigating and Trying Trucking Accident Cases in
Tennessee, 60-minute webinar presented by Drayton Berkley, with The
Berkley Law Firm in Memphis, on Tuesday, December 19, at 2 p.m.
(Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/trucks-121917
or call (800) 727-5257

On-Site Events

Family Law Conference for Tennessee Practitioners

WHEN: 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

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

Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court, 21st
Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District; 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; 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)

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

 Probate & Estate Planning Conference for Tennessee Attorneys
WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)

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

IN THIS WEEKS TAM-Bytes

Court of Appeals, in partition suit, rules trial court improperly ordered

interest of one co-tenant to be divested and vested in another co-tenant
for court-ordered price;
Court of Appeals affirms probate courts holding that executor did not
breach his fiduciary duty in administering estate when executor failed
to make any monetary distributions until more than five years after
estate was opened;
Court of Appeals upholds trial courts denial of fathers petition to
change childs primary residential parent to father from mother when,
although mother violated terms of parenting plan on more than one
 occasion, these violations did not affect childs well-being in
meaningful way;
Court of Appeals reiterates that rights of both parents must be
terminated before third party, such as grandparent, becomes eligible to
adopt child;
Court of Appeals says there is no discernible distinction between
request filed under Tennessee Public Records Act (Act) for interview
cards generated by police officers, which may be obtained under Act,
and request for recent police traffic accident reports;
Court of Criminal Appeals rules that crime of forgery does not require
actual receipt of property or services and is completed regardless of
whether defendant takes anything from victim or whether any third
person is actually injured; and
Court of Workers Compensation Claims finds connection between
conditions of work and employees injury when after employee and
co-worker assisted each other to load respective vans with packages
for days deliveries, co-worker bear-hugged, lifted, and forcefully
threw employee to floor.

COURT OF APPEALS

TORTS: When estate filed suit for healthcare liability alleging that, per
medical orders, decedent was not to be left lying flat in bed and alleging that
on day of her death, decedent had been left lying flat in bed causing her to
suffocate or aspirate and die, trial court properly granted defendants
summary judgment when defendants made properly supported motion for
summary judgment negating essential element of estates claim, i.e.,
causation, and estate did not produce evidence demonstrating existence of
specific facts in record that could lead rational trier of fact to find in favor of
estate. Estate of Sample v. Life Care Centers of America Inc., 10/11/17,
Knoxville, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/estate_of_evelyn_sample_v._life_care_centers_of_america_inc._et_al..pdf

TORTS: In auto accident case, trial court erred in granting defendants

summary judgment when genuine issue of material fact remained as to
allocation of fault and whether defendant employee breached duty to
exercise due care under existing circumstances pursuant to TCA 55-8-
136(b); while recording established that plaintiff changed lanes in abrupt
fashion, recording also established that employee did not slow his speed
while passing construction area with police presence. Trammell v. Peoples,
10/11/17, Nashville, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/trammellpeoples.opn_.pdf
PROPERTY: When appellants petitioned trial court to order partition sale
of property they own as tenants in common with appellee and when trial
court ordered property to be appraised and, upon receipt of appraisal, held
that appellee could buy out appellants interest in property for their portion
of appraised value, trial court improperly ordered interest of one co-tenant to
be divested and vested in another co-tenant for court-ordered price. In re
Estate of Battle, 10/12/17, Nashville, Gibson, 5 pages.
http://www.tncourts.gov/sites/default/files/inreestatedonaldcarlbattle.opn_.pdf

ESTATES & TRUSTS: In case in which beneficiary of decedents estate

asserted that executor breached his fiduciary duty by not making required
distribution on timely basis executor failed to make any monetary
distributions until more than five years after estate was opened evidence
supported probate courts holding that it was reasonable for executor to
withhold distribution of cash to beneficiary and that he acted in good faith in
his distribution of estate funds in light of ongoing litigation involving estate,
ancillary administration taking place in Mississippi and Arkansas, his
reliance on advice of counsel in not making distribution, his retain[ing]
possession and control of estate assets to ensure adequate funds remained to
cover administration, and beneficiarys refusal to sign receipt and waiver;
no damages resulted to either estate or beneficiary, and accordingly, holding
that executor did not breach his duty with respect to tax matters is consistent
with facts and applicable law. In re Estate of Potter, 10/11/17, Jackson,
Dinkins, 11 pages.
http://www.tncourts.gov/sites/default/files/estateofmarjorierosspotteropn.pdf

FAMILY LAW: Uniformed Services Former Spouses Protection Act

(USFSPA) permits state courts to divide military retirees disposable retired
pay as property in divorce proceeding; disposable retired pay means total
monthly retired pay to which a member is entitled, including cost-of-living
adjustments, minus certain debts, deductions, and disability payments; term
entitled could mean either legal right to receive retirement pay or that
spouse qualifies to receive retirement pay under federal law; in case in
which original trial judge ordered that if wife is entitled under federal law
to receive any portion of [husbands] military retirement benefits[,] then she
is awarded one-half (1/2) of those benefits earned during the parties
marriage, trial court correctly concluded that original trial judge intended to
award wife one-half of husbands military retirement that accrued during
their marriage. Lockler v. Lockler, 10/11/17, Knoxville, Susano, 6 pages.
http://www.tncourts.gov/sites/default/files/lockler_opinion.pdf
FAMILY LAW: Evidence did not preponderate against trial courts denial
of fathers petition to modify parenting plan to change childs primary
residential parent to father from mother when, while trial court found that
mother had violated parenting plan by taking child to New Mexico, during
which trip child was baptized without fathers knowledge, mother obtained
dental insurance for child without consulting with father, mother failed to
provide itinerary for out-of-state travel with child, as required by parenting
plan, on at least two occasions, and mother failed to pay her half of co-pays
associated with childs medical visits on number of occasions, violations did
not affect childs well-being in meaningful way. Ballard v. Cayabas,
10/12/17, Jackson, Gibson, 9 pages.
http://www.tncourts.gov/sites/default/files/ballardraymond2opn.pdf

FAMILY LAW: But for stepparent exception, TCA 36-1-117(a) requires

that rights of both parents be terminated before third party, such as
grandparent, becomes eligible to adopt child; adoption statutes provide, as
general rule, that third party cannot adopt child with the consent of a
biological parent who remains a parent to the child. In re Lyric A.,
10/12/17, Nashville, Clement, 5 pages.
http://www.tncourts.gov/sites/default/files/inrelyrica.opn_.pdf

GOVERNMENT: In case in which Jetmore filed petition seeking to inspect

and obtain copies of traffic accident reports prepared by Metropolitan
Nashville Police Department (Metro) promptly as required by Tennessee
Public Records Act (Act), Jetmore was entitled to reports in question there
is no discernible distinction between request for interview cards generated
by police officers, which may be obtained under Act, and Jetmores
requests for recent traffic accident reports; because Metro willfully failed to
provide individual promptly with traffic accident reports he requested for
inspection, trial court properly awarded Jetmore his attorney fees; trial court
properly rejected Metros argument that Acts requirement of promptness
did not apply to copies of traffic accident reports; Acts requirement of
promptness applies to inspection of documents as well as to copies.
Jetmore v. Metropolitan Government of Nashville, 10/12/17, Nashville,
Bennett, 19 pages.
http://www.tncourts.gov/sites/default/files/jetmore.bradely.opn_.pdf

GOVERNMENT: In case in which petitioner sought reversal of denial of

beer permit by City of Chattanooga Beer Board (Board), because petitioners
petition and amended petition were not sworn to before clerk of court, any
judge, or notary public as required by TCA 27-8-106, chancery court was
without subject matter jurisdiction to review ruling of Board; although
petitioner was acting pro se, non-lawyers who represent themselves are not
excused from complying with the same applicable substantive and
procedural law that represented parties must comply with. Hunter v. City of
Chattanooga Beer Board, 10/12/17, Knoxville, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/raymond_hunter_jr._v_city_of_chattanooga_beer_board.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was convicted of

criminal impersonation, identity theft, and two counts of forgery of $500 or
less, crime of forgery does not require actual receipt of property or
services and is completed regardless of whether defendant takes anything
from victim, i.e., forgery is completed by forgery with fraudulent intent,
whether any third person be actually injured or not; defendant waived his
Miranda rights prior to speaking with detective when defendant signed
rights waiver form, albeit on wrong line, after detective reviewed
defendants constitutional rights and rights waiver form with him detective
testified that it was common mistake to sign rights waiver form on name
printed line. State v. McDonald, 10/12/17, Nashville, Thomas, 7 pages.
http://www.tncourts.gov/sites/default/files/mcdonald.opn_.pdf

TRIAL COURTS

EVIDENCE: When defendant filed motion seeking order that all documents
listed on plaintiffs private log must be promptly produced and asserted
ground for production that one or more individuals listed on the privilege
log have been determined by defendant to actually [be] employed by a
third party consultant, Health Care Navigator, LLC (HCN), motion is
denied because HCNs relationship with plaintiff constitutes kind of
insider that requires application of attorney-client privilege to documents
identified in plaintiffs privilege log. Covenent Dove LLC v. PharMerica
Corp., 7/18/17, Davidson Chancery, Lyle, 19 pages.
https://www.tncourts.gov/node/4870451

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee worked at shipping

service as delivery associate, employee and co-worker assisted each other
outside building to load their respective vans with packages for days
deliveries, afterward, when employee attempted to pass through doorway,
co-worker entered building and bear-hugged employee, lifted him up, held
him for few seconds and then forcefully threw him to floor, employee
presented sufficient evidence to establish he is likely to prevail on
compensability at hearing on merits; employee had notice that employer
prohibited horseplay, demonstrated by his signed acknowledgment during
training, but employee did not fully understand danger involved, despite this
training, given employers tolerance of joking around environment and
employers apparent disregard of rule; employer did not strictly enforce rule,
given testimony that employer disciplined no one for horseplay previous to
incident; horseplay defense does not apply when person injured did not
participate in horseplay; causal connection between conditions of work on
morning in question and employees injury existed when precipitating
dispute albeit one lacking ill will stemmed from interaction that
occurred while, and was cultivated by, loading delivery vans, and employee
and co-worker performed this task in relaxed work environment, although
that does not detract from fact that interaction while loading delivery vans
led to assault shortly afterward. Kidd v. LSO Holding Corp., 8/2/17,
Nashville, Switzer, 7 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1872&context=utk_workerscomp

CIVIL PROCEDURE: Employee did not come forward with sufficient

evidence demonstrating that he timely filed claim when employee reported
2/15 work incident, employer provided authorized treatment with Dr.
Holloway, last authorized visit paid by employer occurred on 7/8/15,
employee filed first Petition for Benefit Determination on 3/14/17, and
employee did not present medical opinion supporting employees claim that
he did not discover he had injury causally related to his employment until
Dr. Brady performed surgery on 3/2/17; employee failed to demonstrate he
is likely to prevail at hearing on merits that his injury arose primarily out of
and in course and scope of his employment when although Dr. Brady
subsequently treated employee for 2/15 injury and performed surgery,
employee neither introduced office notes from his treatment with Brady nor
introduced any opinion from Brady as to causal relationship of employees
injury and need for treatment to employment; in light of one-month delay in
provision of medical treatment and possible failure to provide panel of
physicians, employer is referred to Penalty Unit for investigation and
possible penalty assessment. Brown v. Solideal USA Inc., 8/2/17,
Knoxville, Johnson, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1875&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:
www.tncourts.gov