TAM-BYTES April 21, 2014 Vol. 17, No.

16
2014 TAM CLE CALENDAR

Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE THIS FRIDAY, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

PROGRAM HIGHLIGHTS:
Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients For more information or to register go to: www.mleesmith.com/tn-med-mal

*************************************************************** 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE next Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE *This conference is ideal for all attorneys whether youre tech-savvy or new to cloud computing! FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

PROGRAM HIGHLIGHTS:
Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information or to register go to: www.mleesmith.com/tn-tech

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Webinars
Disability Offsets: Traps for the Unwary Attorney and Tips for Avoiding Them, 60-minute webinar presented by Grayson Smith Cannon, Goodlettsville attorney, on Tuesday, May 13, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit. Transvaginal Mesh and Bladder Slings: Concerns and Legal Remedies, 60minute webinar presented by Leigh ODell, Montgomery attorney, on Thursday, May 15, at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes Court of Appeals says mere fact that dividend was not leveraged dividend is not sufficient to prove that dividend qualified for distribution-of-capital Hall Income Tax exemption; Court of Appeals reduces length of transitional alimony to wife who had undergraduate degree and MBA and worked full-time for first 12 years of marriage as financial analyst;

 Court of Criminal Appeals, in case in which trial court denied defendants motion to suppress evidence seized during extended warrantless search of defendants home, says entry of later-arriving officers to scene presented no Fourth Amendment issue under circumstances; and General Assembly sets five-year statute of repose for malpractice actions brought against attorney or accountant. WORKERS COMP PANEL WORKERS COMPENSATION: Trial court correctly chose to apportion employees injury to arm making award subject to 1.5 times impairment cap rather than to thumb as contended by employee, when only physician to testify stated that site of tendon irritation that caused employees trigger thumb was located at point where his thumb joined his wrist; for purposes of workers compensation law, wrist is considered to be part of arm. Evans v. Fidelity & Guaranty Insurance Co., 4/16/14, Nashville, Summers, 7 pages.
http://www.tncourts.gov/sites/default/files/evanslarryopnjo.pdf

WORKERS COMPENSATION: In case in which employee sustained compensable lower back injury in 2006, had surgery, returned to work, and settled claim, he re-injured his lower back in 2008, after several surgical procedures, he was unable to return to work, he filed workers compensation action against employer and Second Injury Fund, and trial court awarded permanent total disability benefits, apportioning 50% of award to employer and 50% to Fund, trial cou rts apportionment of liability is reversed when trial court failed to find what disability would have resulted if person with no pre-existing disabilities, in same position as employee, had suffered second injury but not first; case is remanded for specific finding of fact regarding extent of disability caused by 2008 injury without consideration of 2006 injury. Stough v. Goodyear Tire & Rubber Co., 4/11/14, Jackson, Cantrell, 9 pages.
http://www.tncourts.gov/sites/default/files/stoughopn.pdf

COURT OF APPEALS TORTS: In case in which doctor brought suit, filed on 6/18/07, for legal malpractice against attorney who represented him during disciplinary proceedings by Tennessee Board of Medical Examiners (Board), trial court properly granted partial summary judgment to attorney on basis of statute of limitation; when ALJ entered order requiring doctor to disclose all his proposed witnesses by 4/24/06, doctor had previously sent attorney letter that included list of nine expert witnesses that he wanted to testify, and lawyer did not disclose any of witnesses proffered by doctor or any other witnesses to ALJ before deadline, this failure did not amount, in itself, to

actual injury or legally cognizable injury; when, in response to motion by Board, ALJ entered order on 12/21/06 that prohibited attorney from calling any expert witnesses on doctors behalf because of his failure to meet deadline, ALJs order deprived doctor of legal right that tends to be of critical importance to proceedings involving professional licensing right to defend oneself through use of expert testimony that order satisfied injury component of claim for legal malpractice; when, on 4/23/07, doctor sent letter to lawyer in which he expressed deep misgivings about quality of representation that attorney was providing, including his failure to provide ALJ with his witness list, content of that letter satisfied second element of accrual of cause of action for legal malpractice, that plaintiff knows, or should have known in exercise of reasonable diligence, that injury was caused by attorneys negligence. Rich v. Warlick, 4/15/14, MS, Cottrell, 11 pages
http://www.tncourts.gov/sites/default/files/richj.e.opn_.pdf

TAXATION: In case in which plaintiffs filed suit to recover income taxes paid under protest to Tennessees Hall Income Tax with regard to special dividend plaintiffs received that was classified by corporation for income tax purposes as return of paidin capital, and trial court ruled in favor of plaintiffs based upon finding that special dividend was not leveraged dividend and as such, reduction in book value could have only come through return of capital distribution, mere fact that dividend was not leveraged dividend is not sufficient to prove that dividend qualified for distributionof-capital Hall Income Tax exemption; to qualify for exemption, plaintiffs had burden to prove that special dividend was paid out of capital, which they failed to do; trial courts decision is reversed, and case is remanded for entry of judgment in favor of Department of Revenue. Cherry v. Farr, 4/15/14, MS, Clement, 7 pages.
http://www.tncourts.gov/sites/default/files/cherryw.opn_.pdf

PROPERTY: In case in which real estate developer entered into agreement with Town of Chapel Hill (Town) to purchase sewer and water taps in exchange for Towns extension of sewer line to developers property, developer paid money, and Town extended line, as agreed, developer later lost property through foreclosure before development occurred, when property was sold to third party, Town transferred sewer and water taps to purchasers, and developer filed complaint alleging that Town breached agreement by transferring taps that belonged to developer to third party purchasers, trial court properly granted Towns motion for summary judgment; agreement evidences parties intention that sewer and water taps were to be used in connection with development of property developer owned when agreement was executed, and when developer lost property through foreclosure, developer had no more interest in taps. Lampley v. Town of Chapel Hill, 4/15/14, MS, Cantrell, 8 pages.
http://www.tncourts.gov/sites/default/files/lampleyr.opn_.pdf

FAMILY LAW: In case in which parties divorced following 26-year marriage, and trial court ordered husband to pay wife alimony of $7,000 per month until marital residence was sold along with $3,600 per month in transitional alimony for 48 months, commencing upon sale of marital residence, wife is entitled to receive postdivorce support of $7,000 per month in addition to award of $3,600 per month in transitional alimony for 48 months; given fact that trial court did not explicitly find wife to be economically disadvantaged spouse, wife came out of marriage with marital and separate assets valued at $2.6 million as compared with husband who left marriage with assets valued at $860,000 wife has undergraduate degree and MBA from Vanderbilt and worked full-time for first 12 years of marriage as financial analyst, during which time she earned substantially more income than husband, and it would constitute injustice to husband for him to bear such heavy financial burden, particularly since wifes needs do not justify such award, trial courts award of $7,000 per month is reversed, and duration of transitional alimony award is modified from 48 months to 24 months at $3,600 per month; wife has short-term need for transitional support at amount set by trial court, but not for length of time set. Wheeler v. Wheeler, 4/15/14, MS, Clement, 25 pages.
http://www.tncourts.gov/sites/default/files/wheelere.opn_.pdf

GOVERNMENT: In case in which Tennessee Regulatory Authority (TRA) ordered public water utility to divest itself of water system and to continue providing service temporarily until sale, there was no taking of water utilitys property, rather, TRA ordered utility to sell water system because utility is not competent to continue to operate system; TRAs action is valid exercise of states police power to protect public health and safety. Laurel Hills Condominiums Property Owners Association v. Tennessee Regulatory Authority, 4/14/14, MS, Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/laurelhillsopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In case in which defendant was convicted of facilitation of first degree murder and one count of facilitation of especially aggravated robbery, trial court properly denied defendants motion to suppress evidence seized during extended warrantless search of defendants home when police, who entered known homicide scene with a body present, had sufficient probable cause to support search warrant, had they sought to obtain one; entry of later-arriving officers to scene presented no Fourth Amendment issue under circumstances of case when law enforcement officer enters private premises in response to call for help and thereby comes upon what reasonably appears to be scene of crime, and secures crime scene from persons other than law enforcement officers by appropriate means, all property within crime scene in plain view which officer has probable cause to associate with criminal activity is thereby lawfully seized, and officers arriving at

crime scene thereafter and while it is still secured can examine and remove property in plain view without search warrant; defendants rights under Confrontation Clause were not violated by trial courts admission of victims autopsy report compiled by Dr. Elkins through testimony of Dr. Mileusnic-Polchan; it is not error for trial court to admit autopsy report written by different medical examiner than one testifying. State v. Hutchison, 4/11/14, Knoxville, Page, partial dissent by Tipton, 51 pages.
http://www.tncourts.gov/sites/default/files/hutchisonthomasleeopn.pdf http://www.tncourts.gov/sites/default/files/hutchinsonthomasleecon.pdf

CRIMINAL PROCEDURE: In case in which defendant (Lacy), juvenile, was charged with rape of child, and juvenile court transferred both defendants to circuit court to be tried as adults, record supports juvenile court s conclusion that it had reasonable grounds to believe that Lacy committed offense of rape of child, that Lacy was not committable to mental health institution, and that interests of community required legal restraint or discipline, and hence, Lacy is not entitled to relief from juvenile courts order of transfer to circuit court; juvenile court did not err in finding that Lacy acted with premeditation when having sex with victim Lacy had sex with victim on multiple occasions, and while single instance of sex could be result solely of spur of moment decision, perhaps fueled by alcohol or other drugs, Lacys repeated sexual encounters with victim demonstrated level of premeditation in sense that he anticipated having sex with her and accomplished that goal; defendant (McGill) is not entitled to relief from juvenile courts order of transfer given trial courts conclusion that McGills treatment needs would be better met through adult court system, particularly in light of McGills age (17) and his limited time remaining as juvenile; although TCA 37-1-134(b)(4) requires juvenile court to consider whether alleged offense was committed in aggressive and premeditated manner, juvenile court may consider proof that juvenile committed alleged crime in premeditated manner even if proof does not establish that juvenile also committed crime in aggressive manner. State v. McGill, 4/11/14, Nashville, Bivins, 12 pages.
http://www.tncourts.gov/sites/default/files/mcgilllacyopn.pdf

PUBLIC CHAPTERS FAMILY LAW: Rights afforded non-custodial parent are clarified; lists of factors to be considered by trial court in custody cases are consolidated. 2014 PC 617, effective 7/1/14, 4 pages.
http://www.tn.gov/sos/acts/108/pub/pc0617.pdf

CIVIL PROCEDURE: Five-year statute of repose for malpractice actions brought against attorney or accountant is established. 2014 PC 618, effective 7/1/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0618.pdf

CIVIL PROCEDURE: Civil judgment or restitution order that has been converted to civil judgment entered on or after 7/1/14 is valid until paid in full, rather than renewed every 10 years, if judgment is based upon injury or death caused by criminal conduct and judgment debtor was convicted of criminal offense for such conduct. 2014 PC 596, effective 7/1/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0596.pdf

TRIAL COURTS CONTRACTS: Under Tennessee law, fact that contract is ambiguous and susceptible to reasonable interpretation by defendant, standing alone, is not dispositive of mens rea in claims for procurement of breach or statutory or common law interference with contract; fact of reasonable alternative interpretation is some evidence for court to consider and weigh in deciding if requisite mens rea is established for plaintiff to prevail, but is not dispositive; this evidence will be considered along with other evidence developed during course of lawsuit about communications, dealings, and incentives among all parties and their credibility for deciding whether defendant had improper motive, intent or purpose. Commercial Cartage Inc. v. Harris, 2/10/14, Davidson Chancery, Lyle, 8 pages.

ATTORNEY GENERAL OPINION COMMERCIAL LAW: Because proposed bill, which would amend Tennessee Health Services and Planning Act of 2002 relative to certificates of need for nursing home beds and partial relocation of nursing home, applies to only one entity in one county, it implicates Tenn. Const. Art. I, Sec. 8, and rational basis must exist to justify affording this one entity privilege or exemption that is not extended or available to other entities in same county or in other counties. Attorney General Opinion 14-47, 4/15/14, 3 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-47.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