TAM-BYTES April 29, 2013 Vol. 16, No.

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2013 CLE CALENDAR Audio Conferences Earn one hour of DUAL credit! Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls, 60minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern) Creditors Rights in Tennessee: 10 Collection Strategies, 60-minute audio conference presented by David Anthony, Nasville attorney, on Thursday, June 6 at 10 a.m. (Central), 11 a.m. (Eastern). Dividing Specialty Retirement Plans: A Primer for Tennessee Attorneys, 60minute webinar presented by James D. Helton, Brentwood attorney, on Thursday, June 6 at 2 p.m. (Central), 3 p.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com IN THIS WEEKS TAM-Bytes Court of Appeals holds pre-suit notice requirement in TCA 29-26-121 of Tennessee Medical Malpractice Act does not contravene Separation of Powers Clause of Tennessee Constitution; Court of Appeals determines that agreement to arbitrate all controversies when plaintiff opened brokerage account with defendants was not enforceable; Court of Appeals, in case in which wife gave birth to two children during parties marriage, husband filed for divorce, and subsequent DNA tests confirmed that husband was not father of either child, affirms trial courts determination that husband had no legal obligation to pay wife child support for either child; and Court of Criminal Appeals, in case in which defendant was convicted of murdering married couple, says that trial court did not abuse discretion in admitting evidence of subsequent Florida murder committed by defendant when evidence of Florida murder was probative of issue of identity as modus

operandi of Florida victims death and couples deaths were substantially similar, and evidence also countered defense suggesting that two other men could have killed couple.

SUPREME COURT PROFESSION OF LAW: Petitions to amend Rules of Professional Conduct relating to attorney advertising are denied; continued enforcement of existing rules is preferable to any of changes sought by petitioners. In re Petition to Adopt Changes to Rules of Professional Conduct on Lawyer Advertising, 4/23/13, Nashville, 1 page.
http://www.tncourts.gov/sites/default/files/supreme_court_order_denying_petition_to_amend_supreme_court_rule_8_sec7_2.pdf

COURT OF APPEALS TORTS: Trial court erred insofar as it denied defendants motions for summary judgment on basis that TCA 29-26-121, which requires pre-suit notice in medical malpractice suits, is unconstitutional as violative of Separation of Powers Clause of Tennessee Constitution; pre-suit notice requirements in TCA 29-26-121 do not conflict with courts procedural rules, including TRCP 3 because TCA 29-26-121 requires notice of potential claim before the filing of the complaint; pre-suit notice requirements are satisfied before suit is commenced pursuant to TRCP 3; once suit is commenced under TRCP 3, it then falls to courts to hear facts and decide issues, including issue of whether action should be dismissed for failure to comply with pre-suit requirements. Williams v. SMZ Specialists P.C., 4/19/13, WS, Kirby, 13 pages.
http://www.tncourts.gov/sites/default/files/williamsjcopn.pdf

COMMERCIAL LAW: In case in which defendants First Tennessee Brokerage, Inc. (FTBI) and financial adviser asserted that plaintiff signed agreement to arbitrate all controversies when she opened brokerage account with them, trial court correctly determined that arbitration agreement was not enforceable; interpretation of customer agreement, including enforceability of arbitration clause, is governed by state law; under Tennessee law, claims of fraudulent inducement are not arbitrable but are for judicial determination; trial court correctly found that FTBI did not show that parties actually bargained over arbitration provision or that it was reasonable term considering circumstances when agreement did not afford customer right to revoke arbitration provisions within reasonable period of time, arbitration clause was not contained in separate document but was contained on page 11 of lengthy agreement, there was no explanation of binding arbitration or any language

that would encourage customer to ask questions about process, and cost involved in arbitration was proper consideration in assessing unconscionability; defendants did not prove that plaintiff agreed to arbitrate when there was no evidence to refute plaintiffs testimony that she gave everything back to defendant and that her package of documents did not include arbitration agreement; evidence supported trial courts finding that financial adviser fraudulently induced plaintiff to enter into customer agreement. Webb v. First Tennessee Brokerage Inc., 4/23/13, ES, McClarty, 29 pages.
http://www.tncourts.gov/sites/default/files/webbopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision to designate mother as primary residential parent of parties two children, both with different special needs, and to award mother most of parenting time with children when, even though father requested equal time with children on weekly alternating basis, trial court found that equal time would be disruptive to children in light of their special needs; trial court is not charged simply with calculating amount of time each parent spends with children over course of their lives, then applying that ratio to form residential schedule, rather, childrens best interest is paramount. Pandian v. Rodriguez, 4/23/13, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/pandiansgopn.pdf

FAMILY LAW: In case in which father filed Amended Petition for Custody and to Determine Parenting Plan and, in the Alternative, Petition for Dependent and Neglect in juvenile court, and juvenile court judge found evidence insufficient to prove dependency and neglect but awarded custody of parties child to father on best interest determination, although juvenile court did not find child dependent and neglected, juvenile court awarded custody to father following trial which was part of dependency and neglect proceeding, and hence, circuit court has jurisdiction to hear mothers appeal because juvenile courts decision arose form and was part of dependency and neglect proceeding. In re Britany P.D., 4/22/13, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/britanypd_opn.pdf

FAMILY LAW: In case in which wife gave birth to two children during parties marriage, husband filed for divorce, and subsequent DNA tests confirmed that husband was not father of either child, evidence did not preponderate against trial courts determination that husband had no legal obligation to pay wife child support for either child; Tennessee law strongly favors requiring biological parents to bar responsibility for their own children, and this policy also favors relieving putative fathers of burden of supporting children who have been shown, through conclusive evidence such as DNA testing, not to be their natural offspring. Price v. Price, 4/19/13, WS, Kirby, 5 pages.
http://www.tncourts.gov/sites/default/files/pricetropn.pdf

FAMILY LAW: In case in which parties were divorced in 1991, parties only child, who has spina bifida, turned 18 in 1/07, and mother filed petition for civil contempt against father in 12/07, seeking indefinite extension of fathers child support obligation and alleging that father had not paid child support since 5/07 (after high school class of which child was member when he turned 18 graduated), evidence did not preponderate against trial courts determination that adult child is severely disabled (in light of childs limitations and his need for continuing care and supervision from mother) and that fathers child support should continue at $926 per month. Cook v. Hess, 4/24/13, MS, Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/cookb_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts finding that parties post-nuptial agreement, detailing division of parties marital estate, was fair and equitable and sufficiently definite to be enforceable. Bengs v. Bengs, 4/23/13, MS, Dinkins, 5 pages.
http://www.tncourts.gov/sites/default/files/bengsj_opn.pdf

GOVERNMENT: In case in which Metropolitan Government of Nashville (Metro) filed complaint against defendants (owners of Champion Towing), alleging that defendants were in violation of Metro ordinances by engaging in business of providing wrecker service without license, by making non-consent tows without prior approval from Metro Licensing Commission, and by failing to report tows to Metro Police Department, and seeking injunction preventing defendants from operating wrecker service or wrecker vehicle within Davidson County, evidence did not preponderate against trial courts determination that ordinances at issue applied to defendants and that defendants violated ordinances by operating wrecker service without license; ordinances, part of Metros overall regulatory scheme governing operation of wrecking services, is not preempted by federal law; because Metro has rational basis for prohibiting wrecker services, whose license was previously revoked for failure to follow laws implemented to protect public safety, from operating within county, defendants equal protection argument fails. Metropolitan Government of Nashville v. Myers, 4/22/13, MS, Clement, 8 pages.
http://www.tncourts.gov/sites/default/files/metronashvillemyersopn.pdf

GOVERNMENT: Department of Safety (Department) erred in revoking petitioners handgun carry permit based upon Departments independent determination that petitioner, by virtue of his guilty plea to simple assault under TCA 39-13-101(a), had been convicted of misdemeanor crime of domestic violence as defined by 18 USC 922(g)(9) of federal Gun Control Act when proof did not establish that victim of count of simple assault to which petitioner pled

guilty was his ex-wife petitioner was charged with assaulting two individuals, his ex-wife and her male friend, petitioner pled guilty to only count of misdemeanor assault, but record does not establish whether petitioner pled guilty to assaulting his ex-wife or her male companion. Flatt v. State, 4/22/13, MS, Clement, 7 pages.
http://www.tncourts.gov/sites/default/files/flatta_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant was convicted of two counts of premeditated first degree murder and two counts of felony murder and sentenced to death in connection with murders of Bartlett couple, defendants convictions and death sentences are affirmed; trial court did not abuse discretion in admitting evidence of subsequent Florida murder (Perez murder) committed by defendant when evidence of Perezs murder was probative of issue of identity as modus operandi of Perezs death and deaths of Bartlett couple were substantially similar, and evidence also countered defendants defense at trial suggesting that two other men (either Young or White) could have killed Bartlett couple Perez was killed while Young was in jail, and White testified at trial that he did not own vehicle, and no evidence was presented suggesting that White was in Florida when Perez was killed. State v. Jones, 4/18/13, Jackson, Smith, partial dissent by McMullen, 71 pages.
http://www.tncourts.gov/sites/default/files/joneshenryopn.pdf http://www.tncourts.gov/sites/default/files/joneshenry_-_dissent.pdf

CRIMINAL PROCEDURE: Trial court did not err in allowing defendant to represent herself during trial on two counts of aggravated assault when, although defendant insisted that trial court should appoint counsel, she refused to complete affidavit of indigency, even after trial judge repeatedly explained to defendant that her constitutional right to counsel did not extend to appointed counsel for nonindigent defendant and that she must be found indigent to receive court-appointed counsel, defendant failed to retain counsel when court released part of her bond in order for her to do so, trial court repeatedly advised defendant of perils of selfrepresentation, and eventually, at hearing several months after releasing one-half of defendants cash bond, trial court appointed public defender as advisory counsel to assist defendant at trial; trial judge erred in denying defendants motion to suppress rifle which was taken from defendants home at time of defendants arrest when officers had already arrested defendant and placed her in patrol car when they asked her husband for defendants identification, and eventually, for rifle, and there was no indication that officers could not have detained defendants husband outside until warrant could be obtained or valid consent could be given; although exigent circumstances did not exist for warrantless entry into defendants home and seizure

of rifle, rifle, as exhibit, was not significant to states case and hence, its admission at trial was harmless error. State v. White, 4/25/13, Knoxville, Tipton, 28 pages.
http://www.tncourts.gov/sites/default/files/whitedanielleopn.pdf

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