TAM-BYTES January 6, 2014 Vol. 17, No.

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IN THIS WEEKS TAM-Bytes Supreme Court reverses aggravated burglary conviction when there was no evidence that defendant engaged in act of deception, as defined by statute, and thus, defendant entered residence at victims invitation and with victims effective consent; Court of Appeals rules trial court did not err in failing to charge jury on res ipsa loquitur in medical malpractice case; Court of Appeals considers claims for breach of covenants not to compete, breach of fiduciary duty, breach of duty of loyalty, and breach of nonsolicitation agreement in suit by employer against former employees and company formed by those employees after leaving employment with plaintiff; and Court of Appeals, in case of first impression, holds Mortgage Electronic Registration Systems Inc., which was developed to serve as the mortgagee of record and operate an electronic registration system for tracking interests in mortgage loans, did not have standing to bring suit to set aside tax sale.

SUPREME COURT CRIMINAL LAW: In case in which defendant was convicted of aggravated robbery and aggravated burglary in connection with robbery of individual who sold drinks and snacks from his one-bedroom residence, evidence was not sufficient to convict defendant of aggravated burglary when, based on definition of deception contained in aggravated burglary statute, no reasonable factfinder could conclude that defendants entry into victims residence was without victims effective consent victim typically made all sales through window, but he permitted defendant and his companion to enter residence because he recognized and trusted defendant and offered to extend hospitality to him on day of offense; even if victim could have formed false impression that defendant intended to enter his residence for purpose of purchasing drink, statute does not allow for burglary conviction based upon defendants failure to correct victims false impression of his intention. State v. Pope, 12/30/13, Jackson, Wade, unanimous, 13 pages.
http://www.tncourts.gov/sites/default/files/popemarcusopn.pdf

COURT OF APPEALS TORTS: In case in which plaintiff alleged that defendant neurosurgeon negligently penetrated her spinal cord with surgical instrument while performing cervical fusion at two levels of her neck leading to partial paralysis and other neurological problems, plaintiff was ultimately diagnosed with condition called Brown Sequard Syndrome, several claims were dismissed on directed verdict, and remaining claims went to jury which rendered verdict on behalf of defendant, there was no need for trial court to instruct jury regarding res ipsa loquitur, as jurys verdict did not have to be based on circumstantial evidence; it is not necessary for jury to infer any degree of negligence on defendants part; to contrary, in event jury chose to ignore plethora of expert testimony concerning numerous specific acts that occurred during surgery, jury could do little more than speculate. Bearden v. Lanford, 12/30/13, MS, Clement, 36 pages.
http://www.tncourts.gov/sites/default/files/beardenc.opn_.pdf

TORTS: In case in which bail bondsman filed suit against attorney over title to several pieces of land, suit went to trial before jury, but parties settled before verdict was announced, trial court properly dismissed attorneys subsequent suit against bail bondsmans attorney for malicious prosecution when parties entered into agreement to settle underlying case; circumstances surrounding settlement agreement are not subject to examination by court, and no judgment on favorability can be made; judgments based on settlements between parties are explicitly excluded from being considered as favorable terminations for purposes of malicious prosecution claim. Meeks v. Gasaway, 12/30/13, MS, Cottrell, 11 pages.
http://www.tncourts.gov/sites/default/files/meekt.r.opn_.pdf

EMPLOYMENT: In suit by former employer (plaintiff) against defendant company formed by former employees, trial court properly dismissed claim for breach of fiduciary duty against defendant Brown who engaged in planning for another business opportunity prior to his termination from plaintiff when there was no showing that Brown assumed position of conflict with plaintiffs interest while he was employed there; trial court did not err in determining that conduct of defendants West, Dopp, and Krabacher in failing to fully disclose their reason for leaving employment of plaintiff did not rise to level of bad faith or breach of contractual duty of loyalty; trial court did not err in finding that West did not violate his contractual duty not to solicit employees when there was no evidence that West arranged interviews or took other steps to recruit plaintiffs employees; trial court did not err in ruling that there was no breach of non-competition provisions in agreements signed by Brown, West, Dopp, and Krabacher when evidence demonstrated that product offered by defendant company does not directly compete with products offered by plaintiff because products serve different purposes; evidence supported trial courts finding that Brown violated non-solicitation provision when Brown hosted meeting at his home for employees of plaintiff to

discuss their potential involvement with defendant company and sent emails to other individual defendants regarding their potential employment at defendant company while they were still working for plaintiff. Dominion Enterprises v. Dataium LLC, 12/27/13, ES at Nashville, Frierson, 20 pages.
http://www.tncourts.gov/sites/default/files/dominionenterprises.opn_.pdf

PROPERTY: In case in which Mortgage Electronic Registration Systems Inc. (MERS), which was developed to serve as the mortgagee of record and operate an electronic registration system for tracking interests in mortgage loans, filed suit against purchaser of property at tax sale to invalidate sale based on fact that MERS had not received notice of sale, pursuant to TCA 67-5-2502, even though it was listed as beneficiary or nominee on deed of trust, trial court properly refused to set aside tax sale; in issue of first impression, MERS, which was not pursuing action on behalf of current lender as assignee, but rather, argued that it was independently entitled to notice because it possessed constitutionally-protected property interest as result of being named beneficiary or nominee on deed, did not have standing to bring suit; MERS was never given independent interest in property, and did not suffer injury by sale of property at issue as evidenced by fact that MERS did not discover that property had been sold until approximately 19 months after sale; failure of MERS to tender appropriate funds when filing petition to set aside tax sale did not bar MERS from obtaining necessary relief. Mortgage Electronic Registration Systems Inc. v. Ditto, 1/2/14, ES, McClarty, 9 pages.
http://www.tncourts.gov/sites/default/files/dittoopn.pdf

FAMILY LAW: Trial court properly retained jurisdiction over parties retirement assets pursuant to Qualified Domestic Relations Order (QDRO) trial court may retain jurisdiction to establish or maintain QDRO with regard to division of retirement benefits incident to divorce. Stout v. Stout, 12/30/13, ES, Frierson, 8 pages.
http://www.tncourts.gov/sites/default/files/stout.opn_final.pdf

COURT OF CRIMINAL APPEALS CRIMINAL SENTENCING: If notice of intent to seek enhanced punishment is latefiled or is timely filed but defective, defendant must show prejudice before notice will be rendered ineffective. State v. Johnson, 12/27/13, Jackson, Woodall, 9 pages.
http://www.tncourts.gov/sites/default/files/johnsonjames.pdf

TRIAL COURTS TAXATION: In suit by purchaser of real property to set aside tax sale and to recover compensatory damages and attorney fees for failure of Metropolitan Government of Nashville to provide notice, one-year statute of limitation applied to

42 USC 1983 claim for violation of due process; all 42 USC 1983 constitutional claims generally are subject to statute of limitation for personal injury torts under law of state in which claim arises no matter how plaintiff chooses to characterize underlying harm. Stout Street Funding LLC v. Metropolitan Government of Nashville, 9/5/13, Davidson Chancery, Lyle, 4 pages.

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