TAM-BYTES February 25, 2013 Vol. 16, No.

8
2013 CLE CALENDAR

Onsite Event
Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal

Audio Conferences
Technology Trends and Social Media: Court Decisions, Legal Implications, and More, 60-minute webinar presented by Chuck Young, in-house attorney for Babcock & Wilcox Technical Services Y-12 LLC in Oak Ridge, on Thursday, March 14 at 10 a.m. (Central), 11 a.m. (Eastern). Child Custody in Tennessee: Recent Developments and Legislative Changes, 60-minute audio conference presented by Kevin Shepherd, Maryville attorney, on Wednesday, March 20 at 2 p.m. (Central), 3 p.m. (Eastern). All is Fair (Use) in Love & Copyright: Recent Developments in Copyright Suits, 60-minute webinar presented by Stephen Zralek, Nashville attorney, on Thursday, April 4 at 2 p.m. (Central), 3 p.m. (Eastern).
For more information or to register for any of our CLE events, call (800) 274-6774 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes * Supreme Court finds Workers Compensation Appeals Panel erred in setting aside Department-approved settlement; * Supreme Court says that although father and stepmother established statutory ground for termination of mothers parental rights, i.e., that mother was sentenced to 10 or more years incarceration at time when children were under eight years of

age, they did not establish by clear and convincing evidence that termination of mothers parental rights was in best interests of children; * Supreme Court sets forth principles governing use of stun belt as in-court restraint; * Court of Appeals rules that suit alleging that plaintiffs leg brace became magnetized to side of MRI machine, allegedly causing her additional injuries, sounded in medical malpractice, not ordinary negligence; * Court of Appeals affirms trial courts conclusion that tree that damaged plaintiffs van when it fell from defendants property was felled by act of God and that defendant was not liable for damage caused by tree; * In three consolidated cases, Court of Appeals holds that private non-judicial foreclosure does not involve state action, and hence, does not violate Tennessee constitutional provisions that limit action of government; * Court of Appeals rules trial court did not err in granting wife judgment on alimony arrears, notwithstanding courts failure to hold husband in contempt; * Court of Appeals defines minimum appeal bond required for appeal from general sessions court to circuit court in order to satisfy jurisdictional requirements of TCA 27-5-103; and * Sixth Circuit rules district court erred in failing to suppress drugs found in home when officers attempted to serve arrest warrant, located two houses with same address, and chose to knock on door of home that was occupied.

SUPREME COURT WORKERS COMPENSATION: Workers Compensation Appeals Panel erred in setting aside Department-approved settlement as non-final based on its conclusion that SD-1 form was not fully completed and in concluding that benefit review conference process had not been exhausted; where Department of Labor and Workforce Development (Department) approves proposed settlement, Department shall be deemed to have approved accompanying SD-1 form as fully completed; Department-approved settlement may be treated as final judgment for purposes of TRCP 60.02, and trial court may set aside Department-approved settlement if one or more of enumerated grounds for relief under TRCP 60.02 have been met; trial court erred in setting aside Department-approved settlement pursuant to TRCP 60.02(5) and its inherent authority when employee, in petition filed more than two years after settlement, sought relief from mistake, specifically, that Departments approval of settlement incorrectly stated that employee had been terminated and that because of his termination, maximum permanent partial disability award that employee could receive was 1.5 times medical impairment rating. Furlough v. Spherion Atlantic Workforce LLC, 2/22/13, Nashville, Clark, 4-0, 26 pages.
http://www.tncourts.gov/sites/default/files/furloughc_opn.pdf

FAMILY LAW: In case in which parties, at time of their divorce in 2002, agreed to parenting plan for their two children, almost eight months after divorce, mother injected father with chemical used to euthanize animals, mother pled guilty to attempted second degree murder and was sentenced to 12 years (to be served at 30%) children were seven and five years old at time of mothers sentencing amended parenting plan was entered which provided for visitation with childrens maternal grandmother one weekend per month to allow children to visit mother in prison and provided for return to original parenting plan following mothers release from prison, with supervision by Grandmother for at least six months, father remarried while mother was incarcerated, father and stepmother filed petition for termination of mothers parental rights and petition for adoption by stepmother, trial court concluded that termination of mothers parental rights was not in childrens best interests, but Court of Appeals reversed, finding that children arguably never had a meaningful relationship with mother, father and stepmother failed to prove by clear and convincing evidence that it was in best interests of children to terminate mothers parental rights; trial court properly determined that mother had meaningful relationship with her daughters before she was incarcerated and that mother had attempted to reestablish relationship with children after she was released from prison, although these attempts were frustrated by father. In re Taylor B.W., 2/21/13, Knoxville, Holder, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/tayloropn.pdf

CRIMINAL PROCEDURE: Use of stun belt on defendant during trial implicates many of same principles as use of shackles; principles and procedures set forth in Willocks v. State, 546 SW2d 819 (Tenn.Cr.App. 1976), in connection with use of shackles apply to use of stun belt as in-court restraint. Mobley v. State, 2/21/13, Knoxville, Koch, unanimous, 38 pages.
http://www.tncourts.gov/sites/default/files/mobleybopn_0.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employee presented clear and convincing evidence rebutting statutory presumption of accuracy afforded to impairment rating of MIR physician (Dr. Pechacek) when Pechacek did not testify in person or by way of deposition, his report was simply submitted into evidence as exhibit, employee introduced deposition testimony of his evaluating physician (Dr. Dalal) who stated that Pechacek erred in concluding that employee did not have spondylolisthesis, Dalal also testified that when medical condition may be rated in more than one section,

AMA Guides call for applying section that provides higher rating, Dalal explained that impairment rating he assigned pursuant to portion of Table 17-4 on page 571 of AMA Guides was higher rating, employer did not offer any evidence that refuted Dalals testimony on these points, and Dalals testimony that employee had spondylolisthesis was consistent with testimony of another doctor who examined employee. Smith v. Electric Research & Manufacturing Cooperative Inc., 2/22/13, Jackson, Childress, 8 pages.
http://www.tncourts.gov/sites/default/files/smithjopn.pdf

COURT OF APPEALS TORTS: When plaintiff was injured in all-terrain-vehicle accident and was transported to defendant hospital for treatment, surgeons performed procedure to repair injury to plaintiffs left knee, upon completion of surgery, leg was placed in full brace, plaintiff underwent MRI scan to further diagnose her condition, MRI was performed while plaintiff was wearing her leg brace, and, as scan commenced, plaintiffs brace became magnetized to side of MRI machine allegedly causing her additional injuries, plaintiffs suit against hospital sounded in medical malpractice, not ordinary negligence, as MRI technicians evaluation of plaintiff prior to her entry into MRI scanner required specialized expertise substantially related to rendition of medical treatment; complaint must be dismissed for failure to comply with Tennessee Medical Malpractice Act when document filed by plaintiff did not contain information required by TCA 29-26-122 for certificate of good faith document does not confirm that either plaintiff or her counsel consulted with one or more experts who provided signed written statement, and plaintiffs certificate did not disclose number of prior violations of TCA 29-26-122. Caldwell v. Vanderbilt University, 2/20/13, MS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/caldwellj_opn.pdf

TORTS: In wrongful death action arising out of fight in parking lot of bowling alley where plaintiffs son (decedent), whose group was associated with gang, punched member of rival gang and another member of rival gang drove up and shot decedent, trial court erred in granting defendants, bowling alley owners, summary judgment when defendants did not satisfy their burden to negate element of duty in their negligence claim; instead of prior incidents rule under which plaintiff is required to introduce evidence of prior incidents of crime on or near defendants premises in order to establish foreseeability Tennessee Supreme Court in McClung v. Delta Square L.P., 937 SW2d 891 (Tenn. 1996), adopted balancing approach under which incidents of prior events, or absence thereof, are not determinative on issues of foreseeability; defendants did not conclusively establish that comparative fault of decedent was 50% or more of total fault for his

injuries. Ellington v. Jackson Bowling & Family Fun Center LLC, 2/19/13, WS, Kirby, 14 pages.
http://www.tncourts.gov/sites/default/files/ellingtonnopn.pdf

TORTS: In suit by plaintiff against her neighbor (defendant) for property damage to her vehicle caused when tree from defendants property fell on plaintiffs van, trial court did not err in concluding that tree that damaged plaintiffs van was felled by act of God and that defendant was not liable for damage caused by tree; there was no evidence that live tree that fell on plaintiffs van was encroaching on her property or presented imminent danger of harm to her property prior to storm that caused tree to fall, and hence, even if live tree/dead tree dichotomy is applied, same result follows; there is no basis upon which to conclude that tree constituted nuisance; arguably, because live tree that fell on plaintiffs van was not encroaching on her property, Hawaii rule that living trees and plants are ordinarily not nuisances, but can become so when they cause actual harm or pose imminent danger of actual harm to adjoining property would not apply; even if applied, Hawaii rule leads to same result: no liability. Russell v. Claridy, 2/20/13, MS, Bennett, 6 pages.
http://www.tncourts.gov/sites/default/files/russellc_opn.pdf

PROPERTY: In each of these three cases that were consolidated for oral argument, borrower defaulted on home loan and lender foreclosed by non-judicial action, procedure authorized by deed of trust, purchaser at trustees sale sought possession through unlawful detainer action, borrower at trustees sale sought possession through unlawful detainer action, and borrower filed counterclaim asserting that non-judicial foreclosure process violates Tennessee Constitution and is against public policy, trial court properly dismissed counterclaim and granted possession to purchaser; private non-judicial foreclosure by auction does not involve state action, which is required before there can be violation of Tennessee constitutional provisions that limit action of government. CitiMortgage Inc. v. Drake, 2/21/13, ES, Susano, 17 pages; Federal National Mortgage Association v. Frierson, 2/12/13, ES, Susano, 4 pages; and Patelco Credit Union v. Dutton, 2/21/13, ES, Susano, 4 pages.
http://www.tncourts.gov/sites/default/files/citimortgagedrake.pdf http://www.tncourts.gov/sites/default/files/fnma.pdf http://www.tncourts.gov/sites/default/files/patelcocreditopn.pdf

PROPERTY: When City of Clarksville (City) enacted ordinance imposing temporary moratorium on development of land within 250-foot corridor abutting land owned by developer, and developer filed suit asserting claims for inverse condemnation, wrongful taking, tortious interference with business relationships, and damages pursuant to 42 USC 1983, developer alleged no negligence on part of any employee acting in scope of employment and did not allege any fact which

would support removal of Citys immunity in accordance with statute; factual allegations of complaint, construed liberally and presumed to be true, and giving plaintiff benefit of reasonable inference arising therefrom, are sufficient to be analyzed under standards set forth in Penn Central Transportation Co. City of New York, 438 US 104 (1978), to determine whether moratorium established in ordinance constituted regulatory taking of plaintiffs property; no opinion is expressed as to whether facts alleged, if proven at trial, would support holding that moratorium constitutes taking; holding is only that there are sufficient factual allegations to state claim for relief under inverse condemnation and regulatory taking causes of action asserted by developer. Durrett Investment Co. v. City of Clarksville, 2/15/13, MS, Dinkins, 11 pages.
http://www.tncourts.gov/sites/default/files/durrett_v._clarksville_opn.pdf

PROPERTY: When decedent died at age 89, leaving wife and son as his survivors, prior to his death, decedent transferred majority of his monetary assets and real estate to wife, and following decedents death, son filed suit alleging that decedent did not have mental capacity to execute transfers and that transfers were result of undue influence exercised by wife, trial court did not err in dismissing sons claims; son failed to establish that wife enjoyed confidential relationship with decedent when there was no evidence that wife enjoyed fiduciary relationship with decedent as established through unrestricted power of attorney; not all marital relationships give rise to confidential relationship; while relationship between wife and decedent should be closely scrutinized, burden remained upon son to establish that confidential relationship existed between decedent and wife; evidence did not establish that wife possessed type of confidential relationship that would have allowed her to exercise dominion and control over decedent testimony established that decedent and wife enjoyed loving, 17-year marriage prior to decedents death, and decedent cannot be faulted for ensuring that wife was provided for after his death. Smith v. Smith, 2/20/13, ES, McClarty, 14 pages.
http://www.tncourts.gov/sites/default/files/lestersmithopn.pdf

PROPERTY: Necessity must be demonstrated in order for private access easement to arise following public abandonment of roadway; even after public road is abandoned, abutting landowners continue to have private easement of access to their premises over old road, although such easement is limited to streets or ways that are necessary to landowners ingress or egress; in order to establish easement by necessity, strict necessity is not required, but degree of necessity must be more than mere convenience. Lay v. Wallace, 2/21/13, WS, Highers, 19 pages.
http://www.tncourts.gov/sites/default/files/laythaismopn.pdf

FAMILY LAW: In case in which parties marital dissolution agreement (MDA) provided for transitional alimony payments to wife, which would self-terminate upon occurrence of certain conditions, including cohabitation, husband developed belief that wife was cohabitating and, relying on self-termination clause, ceased payment of spousal support without court intervention, and wife filed petition for civil contempt, seeking monetary judgment in amount of alimony arrears and attorney fees, trial court did not err in granting wife judgment on alimony arrears, notwithstanding courts failure to hold husband in contempt; finding of contempt is not prerequisite to trial courts ability to enforce its orders; trial court did not abuse discretion in concluding that MDA was not sufficiently clear to support finding of civil contempt against husband although husband was legally wrong in failing to pay, husband had reasonable basis for failing to pay alimony, including private investigators report, which led husband to believe that wife was living with third party, advice of counsel, and wifes apparent 32-month delay in seeking to enforce alimony provision. Wilkinson v. Wilkinson, 2/19/13, WS, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/wilkinsonsopn.pdf

FAMILY LAW: In case in which juvenile court referee named mother as childs primary residential parent and awarded visitation rights to father, mother requested rehearing of referees decision before juvenile court judge, alleging that visitation was unfairly decided, prior to rehearing, parties filed numerous petitions and motions related to visitation and custody, including requests for orders of protection and petitions for contempt, and after 10-day hearing, juvenile court judge found that it was in best interest of child that father be named her primary residential parent, juvenile court properly ruled that proceeding before it was one to establish initial custody order, and not modification action, and that proper standard of decision was childs best interest; when party seeks review by juvenile court judge of referees decision, referees report and findings, including any order reflecting such findings, remain only recommendation; because mother has attempted to prevent father from having any relationship whatsoever with child, evidence did not preponderate against juvenile courts decision to name father as childs primary residential parent. In re Zamorah B., 2/15/13, MS, Cottrell, 12 pages.
http://www.tncourts.gov/sites/default/files/zamorahbcopn.pdf

FAMILY LAW: In case in which husband entered into marital dissolution agreement (MDA) whereby he agreed to pay wife rehabilitative alimony for three years, husband terminated alimony payments and filed petition to modify when wife remarried and her employment situation improved, and wife argued that alimony payments could not be modified or terminated, trial court erred in categorizing alimony payments as alimony in solido and in holding that alimony could not be modified because it was contractual in nature, when MDA clearly

identified alimony as rehabilitative, not in solido; establishing rehabilitative alimony for definite period of time does not transform award into different type of alimony or make it unable to be modified by trial court. Finchum v. Finchum, 2/13/13, MS, Cottrell, 6 pages.
http://www.tncourts.gov/sites/default/files/finchumskopn.pdf

APPEAL & ERROR: Requirement of bond in order to perfect appeal from inferior court to circuit court is not formality, and appeal is not perfected without it; TCA 27-5-103 does not require appellant to file appeal bond with no monetary limit, and statute may be satisfied by filing of appeal bond in amount certain, to be established by legislature or its designee; TCA 27-5-103 permits appeal bond in form of either cash bond or surety bond; TCA 8-21-401(b)(1)(C)(i) designates amount of TCA 27-5-103 appeal bond for the costs of the appeal; to extent that Jacob v. Partee, 37 TAM 36-23 (Tenn.App. 2012), reaches contrary result, it is overruled. Bernatsky v. Designer Baths & Kitchens LLC, 2/15/13, WS, Kirby, concurrences by Farmer & Stafford, 39 pages.
http://www.tncourts.gov/sites/default/files/bernatskymarvinopn_0.pdf http://www.tncourts.gov/sites/default/files/bernatskymarvincon.pdf http://www.tncourts.gov/sites/default/files/bernatskycon.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which officers entered defendants residence looking for defendants boyfriend (Boyd), escaped fugitive, evidence was not sufficient to convict defendant of knowingly providing false statement to law enforcement officers to obstruct their apprehension of fugitive when, whether or not defendant could have provided more truthful answer to officers question, state did not prove that defendants answer, I dont know, was false as to officers specific question, where is he? while it is entirely possible that defendant actually knew in which direction Boyd had fled, that is not question she was asked, and officer never asked follow-up question soliciting additional information. State v. Mellott, 2/19/13, Knoxville, Thomas, 7 pages.
http://www.tncourts.gov/sites/default/files/mellottleia_opn.pdf

CRIMINAL LAW: Defendants conviction for violating implied consent law is reversed when jury, instead of general sessions court as required by TCA 55-10406(a)(4)(A), made determination that defendant had committed offense. State v. Glavin, 2/14/13, Nashville, McMullen, partial dissent by Wedemeyer, 13 pages.
http://www.tncourts.gov/sites/default/files/glavinfrankopn.pdf http://www.tncourts.gov/sites/default/files/glavinfrankdissent.pdf

CRIMINAL SENTENCING: In case in which defendant was convicted of initiating process to manufacture methamphetamine and promotion of

methamphetamine manufacture, trial judge abused discretion by ordering defendant to serve full year of his sentence in confinement; imposition of one year of confinement in split confinement sentence of eight years in order to teach defendant lesson of who is in charge with regard to probation, when all other factors weighed firmly in favor of probation, was not warranted; although trial court properly concluded that defendant needed some shock time in jail, shock time under circumstances is satisfied by service of 30 days in jail; defendants sentence is modified to one of split confinement with 30 days in jail and balance to be served on probation. State v. Spiceland, 2/15/13, Nashville, Woodall, 10 pages.
http://www.tncourts.gov/sites/default/files/spicelandgregoryopn.pdf

SIXTH CIRCUIT COURT OF APPEALS CRIMINAL PROCEDURE: In case in which defendant invoked his Miranda right to counsel on 11/9/06, while he was in custody at White County jail for his arrest on White County warrant, and special agent with Tennessee Department of Correction interviewed defendant on 3/23/07, more than four months after he invoked his right to counsel and more than three months after he was transferred from White County jail, where he had been held for new charges, to Brushy Mountain Correctional Complex, where he was being held for violating terms of his parole from prior conviction, district court properly denied defendants motion to suppress his 3/23/07 statement to police; because defendant was being lawfully imprisoned for prior conviction, he had not been in Miranda custody for over three months, much more than 14-day cleansing period required by Maryland v. Shatzer, 130 SCt 1213 (2010), before defendant can be re-interrogated Shatzer held that after 14-day break in custody, police may ask accused to waive his or her Miranda right to counsel even though defendant has previously invoked his or her Miranda right to counsel while in custody. United States v. McWhorter, 2/20/13, Siler, 21 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0188n-06.pdf

CRIMINAL PROCEDURE: In case in which officers attempted to serve criminal trespassing arrest warrant on Brown at 3171 Hendricks Avenue in Memphis, officers located two homes on opposite sides of street with 3171 address, officers subsequently chose to knock on door of house that was occupied which turned out to be Shaws residence, 3170 Hendricks after which they performed protective sweep of house, discovered cocaine in home, and arrested Shaw on drug-dealing and drug possession charges, district court erred in denying Shaws motion to suppress drugs found in his home; officers failed to take steps to reasonably ensure they were not entering wrong home when they attempted to execute arrest warrant; officers may not say something is true that they have

arrest warrant for this house as basis for obtaining entry into house when there is 50-50 probability that statement is false. United States v. Shaw, 2/21/13, Sutton, dissent by Griffin, 15 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0048p-06.pdf

REVENUE RULINGS TAXATION: Applicability of Tennessee sales and use tax industrial machinery exemption in manufacturing facility. Department of Revenue Ruling 12-02, 4/30/12, 11 pages.
http://www.tn.gov/revenue/rulings/sales/13-02.pdf

TAXATION: Application of Tennessee sales and use tax to various transactions between third party contractor and manufacturer. Department of Revenue Letter Ruling 12-12, 7/24/12, 10 pages.
http://www.tn.gov/revenue/rulings/sales/12-12.pdf

ATTORNEY GENERAL OPINION TAXATION: Proposed legislation that would allow for four-year period in which to phase in increase in assessment value on commercial property resulting from capital improvements undertaken by business owner that substantially increase propertys value would violate Tenn. Const. Art. II, Sect. 28. Attorney General Opinion 13-11, 2/13/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-11.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/