Tam-Bytes September 19, 2016 Vol. 19, No. 38 TAM Webinars: Bryan Moseley November 1

TAM-BYTES
September 19, 2016

Vol. 19, No. 38
TAM Webinars
Attorneys Civil Rights Update: Excessive Force, Unlawful Arrest,
and More, 90-minute webinar presented by Bryan Moseley, with
Moseley & Moseley in Murfreesboro, on Tuesday, November 1, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
Determining Coverage in Tennessee Uninsured/Underinsured
Motorist Cases, 60-minute audio conference presented by Melanie M.
Stewart, with Heaton & Moore in Memphis, on Tuesday, November 8, at
2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Valuing Damages in Uninsured/Underinsured Motorist Cases in
Tennessee, 60-minute audio conference presented by Melanie M.
Stewart, with Heaton & Moore in Memphis, on Thursday, November 10,
at 2 p.m. (Central), 3 p.m. (Eastern).
Pretrial Prep: Know Your Court, Judge, Parties, and Case, 60minute webinar presented by Stephanie Balzli, with Shunnarah Injury
Lawyers in Birmingham, on Tuesday, November 15, at 10 a.m. (Central),
11 a.m. (Eastern).
Auto Injury Litigation in Tennessee: Damages Considerations, 60minute audio conference presented by Steven G. Fuller, Nashville
attorney, on Thursday, November 17, at 2 p.m. (Central), 3 p.m. (Eastern).
TAM On-Site Events

Tennessee Workers Comp Conference
WHEN: November 9, 10, & 11
Wednesday afternoon, Thursday (all day), & Friday (morning),
WHERE: Franklin Embassy SuitesNashville South/Cool Springs
CLE: Earn up to 15 hours of CLE (14 GENERAL and 1 DUAL)
On Thursday, attendees may choose to attend a track designed for attorneys or one designed for
employers and others or you may mix the tracks to better serve your needs. You get an interactive
program, including panel discussions the speakers welcome your questions and feedback.
FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela

Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF WORKERS
COMPENSATION: Troy Haley; Brian Holmes; and Robert B. Snyder, M.D.
WORKERS COMP/EMPLOYMENT LAW ATTORNEYS: Mary Dee Allen, Wimberly
Lawson Wright Daves & Jones PLLC; Fred Baker, Wimberly Lawson Wright Daves &
Jones PLLC ; Leslie Bishop, Lewis, Thomason, King, Krieg, & Waldrop, P.C.; Kitty
Boyte, Constangy, Brooks, Smith & Prophete, LLP; Adrienne B. Fazio, Manier &
Herod; T. Joseph Lynch, III, Wimberly Lawson Wright Daves & Jones PLLC;
Marshall McClarnon, Ponce Law; Stacie D. Miller, Arnett, Draper & Hagood, LLP;
Jessica Housch Silinsky, Carr Allison; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. EMPLOYMENT LAW ATTORNEY: Greg Grisham, Ford &
Harrison LLP. OTHERS: Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine
and Rehabilitation, subspecialty Board Certification in Pain Medicine and Dawn
Trojan-Randle, Claim Specialist at Brentwood Services.
HIGHLIGHTS: Youll hear from Chief Judge Ken Switzer and Judge Pam Johnson,
with the Court of Workers Compensation Claims, as well as Judges Tim Conner and
Marshall Davidson of the Workers Compensation Appeals Board; youll gain insight on
causation issues under the new law from a panel of attorneys and physicians, hear about
when it is appropriate to terminate an employee who has filed a workers comp claim, and
receive a comparison of how workers comp injuries are resolved under the old (preJuly 1, 2014) versus the new (post-July 1, 2014) law; youll get an update on the latest
rulings from the Workers Compensation Appeals Panels, the Workers Compensation
Appeals Board, and the Court of Workers Compensation Claims; youll hear from Bureau
of Workers Compensation representatives on the employer penalty process, Drug
Formulary, pain management rules, and the ombudsman/mediation program; and youll
also get up to date on complex issues, such as Medicare set-asides, handling disputes over
an employees future medical benefits, new pain management rules, hot topics from the
plaintiffs perspective, and ethical issues arising under the new law.
For more information or to register call us at (800) 274-6774 or visit

www.mleesmith.com/tn-workers-comp
Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, November 17-18
WHERE: Nashville Nashville School of Law
FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge Thomas R.
Frierson, II, Court of Appeals, Eastern Section; Judge W. Neil Thomas, III, Circuit Court,
Hamilton County; Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County;
Brandon Bass, Law Offices of John Day, PC; Harlan Dodson, Dodson, Parker, Behm &
Capparella, PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; John J. Hollins, Jr., Thompson Burton PLLC; Helen Rogers, Rogers, Kamm
& Shea; Kara E. Shea, Butler Snow LLP; Tom Shaw, Assistant General Counsel, Corrections
Corporation of America; W. Russell Taber, III, Riley Warnock & Jacobson, PLC; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC; Chris Vrettos, Gideon, Cooper & Essary
PLC; and Clifford Wilson, Howard Tate Sowell Wilson Leathers & Johnson, PLLC.
HIGHLIGHTS: Get an overview from Chancellor Ellen Hobbs Lyle about the practice and
procedures in the states new business court; get up to date on the latest developments in the
areas of personal injury, family law, and real estate; get practice pointers from Hamilton
County Circuit Judge Neil Thomas on oral and written skills to use in filing and presenting
various pretrial motions; learn the ins and outs of appellate practice and procedure and the
deferential abuse of discretion standard of review from Court of Appeals Judge Frank Clement;
get tips and strategies on advising your clients about the time overtime procedure, which is set
to take effect on December 1; learn how to use websites and social media to promote yourself
and your law practice; get an insiders perspective from the Chief Disciplinary Counsel on the
Boards recent developments; gain insight from Court of Appeals Judge Thomas Frierson on
accepting, terminating, or declining representation.
************************************************************
Family Law Conference for Tennessee Practitioners

WHEN: Thursday & Friday, December 1-2
FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton PLLC, Memphis;
Judge Joe Binkley, circuit court, Davidson County; Judge Robert L. Childers, circuit
court, Shelby County; J. Todd Faulkner, Law Office of J. Todd Faulkner, Nashville;
Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy) D. Helton, II, Helton
Law Office, Brentwood; Candi Henry, Dodson Parker Behm & Capparella PC,
Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard, Nashville; Judge Phillip
Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; Eileen Burkhalter Smith, Disciplinary
Counsel, Board of Professional Responsibility; and Judge Joseph Woodruff, circuit
court, 21st Judicial District (Hickman, Lewis, Perry, and Williamson counties).
HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;

technology for the family law practitioner; retirement plans and QDROs; practical tips
from judges across the state; spousal/child support awarding, modifying, or
terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family
matters; case law/legislative update; ethics and professionalism in family law practice;
and attorneys ethical use of social media.

www.mleesmith.com/family-law-2016
************************************************************
Probate & Estate Planning Conference for Tennessee Attorneys

WHEN: Thursday & Friday, December 8-9
FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell PLC, Jackson;
Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan, Goodman Callahan
& Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph Levy, Jr.,
Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight & Harbison,
PLC, Nashville; 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; Michelle Poss, Sobel, Poss & Moore,
Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L. Takacs,
Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor &
Matthews, PLC, Memphis.
HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips for
probating a will and administering estates; planning for digital assets; probate litigation
case law and legislative update; ethical issues facing trust and estate planning attorneys;
and ethics in elder care.

www.mleesmith.com/probate
IN THIS WEEKS TAM-Bytes

Workers Comp Appeals Board affirms dismissal of case with
prejudice after employee and her attorney failed to appear at show
cause hearing and failed to take actions as directed by trial court;
Court of Appeals rules broker of shipment that was being delivered
could not be held vicariously liable for negligence of delivery driver;
Court of Appeals reiterates that tenant seeking to retain possession of
property during unlawful entry and detainer appeal must post
possession bond in amount of one years rent;
Court of Appeals reverses trial courts denial of mothers request to
relocate from Tennessee to Pennsylvania with parties child when
reasons given in support of relocation, including proximity to her
husband, availability of support from extended family, employment
opportunity with increased income, ability to pursue post-graduate
education, and absence of reliable family support in Tennessee, were
reasonable and outweighed fathers loss of co-parenting time; and
Court of Criminal Appeals reverses denial of petition of postconviction relief when counsel misinformed defendant that he would
serve 85%, rather than 100%, of his 15-year sentence.
WORKERS COMP APPEALS BOARD
CIVIL PROCEDURE: Trial court did not abuse discretion in dismissing
case with prejudice after employee and her attorney failed to appear at show
cause hearing and failed to take actions as directed by trial court; trial court
characterized excuses offered by employees attorney including not
receiving order due to office email problems, receiving email containing
order but not opening it due to allergies affecting his ability to see, attending
funeral out of town, and inadvertently overlooking email containing order
as contradictory and questioned their veracity. Lightfoot v. Xerox Business
Services, 9/12/16, Davidson, dissent by Conner, 26 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1525&context=utk_workerscomp
COURT OF APPEALS
TORTS: When there was multiple-vehicle accident during which plaintiffs
car collided with tractor-trailer that was owned and operated by Benouttas,
Benouttas was delivering shipment pursuant to contractual arrangement with

MGR Freight Systems, Inc., and in addition to suing Benouttas and MGR,
plaintiff sued AllStates Trucking, Inc., which had contracted with MGR to
deliver shipment to AllStates customer, trial court did not err in summarily
dismissing all claims against AllStates; although AllStates maintained some
degree of control over result and objective of parties relationship, i.e.,
delivering shipments to particular location at particular time, AllStates did
not control means and manner by which Benouttas and MGR accomplished
this objective, such arrangement is not indicative of agency relationship
between parties it shows that Benouttas and MGR were independent
contractors of AllStates and additional factors also support conclusion that
Benouttas and MGR were independent contractors, and hence, trial court
properly determined that AllStates cannot be held vicariously liable under
respondeat superior doctrine; trial court correctly determined that AllStates
cannot be held vicariously liable under joint venture theory; trial court
correctly determined that AllStates cannot be held vicariously liable under
imputed partnership theory. Bowman v. Benouttas, 9/9/16, Nashville,
Clement, 18 pages.
http://www.tncourts.gov/sites/default/files/bowman.christy.corr_.opn_.pdf
PROPERTY: Tennessee law clearly requires tenant, who seeks to retain

possession of property during unlawful entry and detainer appeal, to post
possession bond in amount of one years rent; while impoverished tenants
may appeal result in unlawful detainer action on paupers oath, such tenants
may not retain possession of premises during appellate process without
posting bond; when appellant filed notice of appeal to circuit court using
paupers oath in lieu of appeal bond, circuit court properly dismissed appeal,
finding that appellant failed to perfect appeal because she did not post
possession bond even though she retained possession of property. Crye-Leike
Property Management v. Dalton, 9/12/16, Jackson, Armstrong, 7 pages.
http://www.tncourts.gov/sites/default/files/cryeleikepropertyopn.pdf
FAMILY LAW: Evidence did not support termination of putative fathers

parental rights to his child when father was served with summons and copy
of termination petition by publication, but reasonable steps were not taken to
ensure that putative father had actual notice of termination proceeding; given
that no mention was ever made of any effort to serve putative father at
address, i.e., Peter Pan Street, Department of Childrens Services had
previously identified as address for him in termination proceeding, and trial
court later found that putative father lived at address on Peter Pan Street,
putative fathers due process rights were violated; evidence did not support
termination of mothers parental rights on ground of persistence of
conditions when, in spite of mothers admission that her mental health issues
still generally persist and that she will never be through with therapy, it is
not clear what impact mothers current mental health has on her ability to
parent although mothers mental health may pose significant barrier to
reunification given her prior struggles and failure to seek consistent
treatment, clear and convincing evidence on this point is lacking; evidence
supported termination of mothers parental rights on grounds of
abandonment by failure to provide suitable home, substantial noncompliance with requirements of permanency plans, and severe child abuse.
In re Stormie M., 9/15/16, Nashville, Goldin, 31 pages.
http://www.tncourts.gov/sites/default/files/inrestormiem._opn.pdf
FAMILY LAW: Evidence preponderated against termination of fathers

parental rights to his child on sole ground of persistence of conditions when
father was incarcerated at time child was removed from home, removal of
child from parents home is threshold requirement for applicability of
persistence of conditions ground, and because there was no order on
dependency and neglect and because child was not removed from
defendants custody or home, threshold requirements for applicability of
persistence of conditions ground were not met with regard to father; trial
courts order terminating fathers parental rights is reversed. In re Mickia J.,
9/19/16, Knoxville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/in_re_mickia_j.pdf
FAMILY LAW: In case in which parties were divorced in 4/12, mother was
designated as primary residential parent of parties two children, in 4/15,
mother provided father with notice of intent to relocate to Pennsylvania with
two children, and father filed petition in opposition to move, trial court erred
in denying mothers relocation request; given fact that father never alleged
that motive behind mothers desire to relocate was vindictive or that
relocation posed threat of serious and specific harm to children, mother cited
numerous reasons in support of her relocation, including proximity to her
husband, availability of support from extended family, employment
opportunity with increased income, ability to pursue post-graduate
education, and absence of reliable family support in Tennessee, and father
failed to respond to majority of mothers stated reasons in his petition in
opposition, and instead, simply asserted that similar opportunities were
available in Tennessee and that relocation would disrupt childrens
relationship with maternal grandmother; while similar employment and
educational opportunities may be available to mother in Tennessee, mothers
stated purposes for relocating were reasonable and substantial when
considered together, and these purposes outweighed fathers loss of coparenting time. Slavko v. Slavko, 9/9/16, Nashville, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/slavko.angela.opn_.pdf
COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In aggravated robbery case, trial judge
properly denied defendants motion to suppress his statement to police,
finding that defendant made knowing and voluntary waiver of his right
before giving his statement to police, when detective read 17-year-old
defendant his rights at outset of interview, detective had defendant initial
alongside each right and sign at bottom to indicate that he understood before
giving statement, officers stated that defendant engaged with them and
appeared to understand what was happening, and defendant testified that he
can understand things even if he cannot read. State v. Booker, 9/15/16,
Jackson, Glenn, 10 pages.
http://www.tncourts.gov/sites/default/files/bookerallenopn.pdf
CRIMINAL PROCEDURE: In case in which defendant was found to have

violated conditions of his probation when he was arrested and convicted of
multiple crimes in North Carolina and failed to appear at his first meeting
with his probation officer, defendant was not deprived of his right to speedy
trial, and delay between initial violations in 2001 and 2003 and hearing in
2015 was result of his own misconduct when State of Tennessee could not
obtain jurisdiction over defendant until he was released from North Carolina
defendant was not available for revocation hearing until that time
defendant fled Tennessee for North Carolina while out on bond, and
defendants repeated and wrongful departures from trial courts jurisdiction
constituted waiver of demand for speedy trial. State v. Moody, 9/15/16,
Jackson, Williams, 7 pages.
http://www.tncourts.gov/sites/default/files/moodygregoryopn.pdf
CRIMINAL PROCEDURE: Trial counsel was ineffective in advising

petitioner that, in accordance with plea agreement, he would serve his
sentence at 85% of his 15-year sentence when sentence was to be served at
100%, resulting in difference to petitioner of two years and three months
more of incarceration; counsels deficient performance rendered petitioners
guilty plea unknowingly and involuntarily entered; denial of post-conviction
petition is reversed, and case is remanded for petitioner to withdraw his plea.
Davis v. State, 9/9/16, Knoxville, Wedemeyer, 15 pages.
http://www.tncourts.gov/sites/default/files/davisgordonopn.pdf
SIXTH CIRCUIT COURT OF APPEALS

INSURANCE: When state attorney general filed suit against HRC Medical
Centers, Inc. (HRC) and Dan Hale and Don Hale, principals and directors of
HRC (plaintiffs), seeking to have court dissolve HRC and revoke Dan
Hales medical license, among other relief, and plaintiffs filed suit to compel
insurer to defend them, district court properly ruled that plaintiffs made
material misrepresentations on coverage application when application asked
whether there were any demands or lawsuits made in last five years or
currently pending, and plaintiffs failed to disclose that number of customers
had demanded refunds and one had filed suit against them, and when
application asked whether applicant had any knowledge or information of
any fact, circumstance or situation that could reasonably give rise to claim,
and plaintiffs did not disclose that number of customers filed complaints
with Consumer Affairs Division and with Better Business Bureau of Middle
Tennessee, that one customer filed suit against them, and that television
station investigated them. Hale v. Travelers Casualty & Surety Co. of
America, 9/16/16, Moore, 6 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0538n-06.pdf
COMMERCIAL LAW: In case involving defective mobile home,

defectively installed such that floor was two inches off level, for which
district court determined that revocation of acceptance was proper remedy,
district courts benchmark for damages should have been purchase price of
home rather than plaintiffs $1,400 monthly mortgage payments; benefit
derived by plaintiffs from use of defective house should also be revisited on
remand district court determined value to plaintiff of $1,000 per month,
high sum considering many problems with mobile home; evidence supported
district courts conclusions that faulty installation amounted to breaches of
contract and associated warranties. Bennett v. CMH Homes Inc., 9/13/16,
Rogers, partial dissent by Suhrheinrich, 17 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0531n-06.pdf
COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Document denying employee short-term
disability benefits was relevant, but employee did not properly authenticate
letter when employee indicated that faxed pages were clearly stamped from
[Dr. Abbeys] office, but, in fact, fax markings merely identify date and time
of transmission and number of pages, some of which appear to be missing,
employee asserted documents were in Abbeys own words, but Abbey does
not make direct statement within document, and bulk of document appears to
be copies of email communication, and document is unsigned; although Dr.
Davis records mention employees wrist pain and her work together, there is
no statement affirmatively linking two, and hence, Davis records do not meet
requirement that expert medical opinion be shown to reasonable degree of
medical certainty considering all causes. Berry v. Community Health
Services, 5/11/16, Nashville, Switzer, 12 pages.
WORKERS COMPENSATION: Worker did not establish that he was

employee of Prestige Group when Prestige Groups owner testified that he
told worker that he had no work to offer and directed him to see friend for
work, workers sole proof of compensation was his testimony that owner
paid him, but he failed to produce any written documentation such as
cancelled check or pay stub, worker was unsure of rate of pay, owner denied
paying worker for work done, workers only proof that he performed
services on behalf of owner was his testimony that he reported to work at
appointed time and place and performed tasks under owners direction, and
owner denied this. Black v. Prestige Group LLC, 5/11/16, Nashville,
Switzer, 9 pages.
CIVIL PROCEDURE: When injury for which employee sought benefits

allegedly arose because of repetitive use of her hands and upper extremities
at employer, employee testified that she last worked at employer on 9/15/15,
and employee introduced note indicating doctor took her off work on
9/15/15, employee is likely to prevail at hearing on merits in establishing she
last worked at employer on 9/15/15, and hence, employees Petition for
Benefit Determination, filed on 11/20/15, was timely; employee did not
establish her bilateral upper extremity pain arose primarily out of and in
course and scope of her employment, but employees failure to establish
compensability of her alleged injuries during Expedited Hearing does not end
inquiry into whether she is entitled to medical benefits when employee
testified that her repetitive work at employer caused her to experience hand
and upper extremity pain, she was reassigned to labor work after year, and
she experienced recurrence and worsening of earlier-reported hand and upper
extremity symptoms; employees claim for temporary total disability benefits
is denied when she did not come forward with any expert medical opinion
causally connecting her alleged disability to work-related injury at employer.
Kelso v. Five Star Food Service, 5/3/16, Chattanooga, Wyatt, 13 pages.
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

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TAM-BYTES

September 19, 2016

TAM On-Site Events

FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela

For more information or to register call us at (800) 274-6774 or visit

Law Conference for Tennessee Practitioners

Family Law Conference for Tennessee Practitioners

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;

For more information or to register call us at (800) 274-6774 or visit

Probate & Estate Planning Conference for Tennessee Attorneys

For more information or to register call us at (800) 274-6774 or visit

IN THIS WEEKS TAM-Bytes

Benouttas was delivering shipment pursuant to contractual arrangement with

PROPERTY: Tennessee law clearly requires tenant, who seeks to retain

FAMILY LAW: Evidence did not support termination of putative fathers

FAMILY LAW: Evidence preponderated against termination of fathers

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant was found to have

CRIMINAL PROCEDURE: Trial counsel was ineffective in advising

SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: In case involving defective mobile home,

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Worker did not establish that he was

CIVIL PROCEDURE: When injury for which employee sought benefits

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