TAM-BYTES

September 8, 2014
Vol. 17, No. 36

2014 TAM CLE CALENDAR
Webinars
Police Liability in Tennessee: Top 20 Ways to Win and Lose a Section
1983 Lawsuit, 60-minute webinar presented by Steve Elliott, Nashville
attorney, on Thursday, September 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Custody Issues in Tennessee: Changing the Primary Residential Parent,
Modifying Parenting Time, and More, 60-minute audio conference
presented by Kevin Shepherd, Maryville attorney, on Tuesday, September
30, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Business Entity Laws in Tennessee: Tips for Litigators from Richard
Spore, 60-minute audio conference presented by Richard Spore, Memphis
attorney, on Thursday, October 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Marketing Solo and Small Law Firms Online: practical and Ethical Issues
for Attorneys, 60-minute audio conference presented by John Watts,
Birmingham attorney, on Wednesday, October 29, 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

On-Site Events
Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26 Nashville School of Law
COMING NEXT WEEK!!

TOPI CS: Get up to date on the hottest issues in Tennessee personal injury
practice, including the latest products liability developments, trial tips from a
trial judge, handling medical records and private information, limitations on the
use of HIPAA protected documents in litigation, Affordable Care Act concerns,
auto insurance policies, negotiating with insurance adjusters, caps on damages,
Medicare set-asides, and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs
and defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven
Fuller, Bryan Moseley, David Randolph Smith, and Mathew Zenner.
*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit

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Probate & Estate Planning Conference for Tennessee Attorneys
Thursday & Friday, October 23-24
Nashville School of Law

TOPI CS: Spend 2 days with some of the states top estate planning and probate
practitioners offering tips on advanced estate planning strategies, drafting
QTIPs, GRATs, and QPRTs, will drafting in 2014, the intersection of family
law and estate planning issues, use of Medicaid-compliant annuities, hot topics
in probate litigation, practicing in probate court, and updates on issues related to
trusts, estate planning, and probate. Also, hear about ethical issues arising when
crafting a healthcare power of attorney, a living will, or an advance care plan
and ethical issues arising in estate administration, such as client confidentiality,
billing inquiries, and other difficult-to-resolve dilemmas.

FACULTY: Elaine Beeler, Williamson County Clerk & Master; Will Bell,
Rainey, Kizer, Reviere & Bell; Rebecca Blair, The Blair Law Firm; David
Callahan, Goodman Callahan & Blackstone; Peter T. Dirksen, U.S. Trust,
Bank of America Private Wealth Management; Harlan Dodson, Dodson,
Parker, Behm & Capparella; Donald Farinato, Holbrook Peterson Smith;
Carla Lovell, Sherrard & Roe; Barbara Boone McGinnis, Elder Law Practice
of Timothy L. Takacs; Hunter R. Mobley, Howard Mobley Hayes &
Gontarek; Jeff Mobley, Howard, Mobley Hayes & Gontarek; Al Secor,
CapitalMark Bank & Trust; Tim Takacs, CELA, Elder Law Practice of
Timothy L. Takacs; and Pam Wright, CELA, West Tennessee Legal Services.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for
injuries occurring on or after July 1, 2014, as well as how claims will be
decided by the claims courts; compliance issues for attorneys subject to
HIPAA; latest developments in medical malpractice, including how the
appellate courts have ruled on compliance with the pre-suit notice and
certificate of good faith requirements; how to embrace your inner digital lawyer
and get up to date on issues such as mobile computing, file management, and
the risks of going mobile; what every litigator needs to know about business
entity laws in Tennessee; latest developments in the family law area; checklist
for provisions to be included in a will today; recent changes to the rules on
computer calls; how to use a little-known VA benefit to aid your clients;
overview of the administrative process in Tennessee from an experienced
chancellor; ins and outs of standards of review and the scope of the appellate
practice from an appellate court judge; tips from a chancellor on pretrial motion
practice; an insiders perspective from the Chief Disciplinary Counsel on the
Boards recent developments; how to avoid e-discovery ethical pitfalls and how
to handle social media, e-mail, video, and other electronically stored
information; and insight from a former trial judge and now special judge on
displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge
Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen
Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy,
Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright
Daves & Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella
PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Kevin
Levine, DeSalvo & Levine PLLC; Helen S. Rogers, Rogers, Kamm & Shea;
Lucas R. Smith, Bass, Berry & Sims PLC; Richard Spore, Bass, Berry &
Sims PLC; Elizabeth Warren, Bass, Berry & Sims PLC; and John Watts,
Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

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Tennessee Workers Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs

HI GHLI GHTS: Gain insight from new judges on the Court of Workers'
Compensation Claims and the Workers' Compensation Appeals Board; get
review of changes that took effect on July 1 -- including the new permanent
partial disability formula, the new standard developing medical proof regarding
causation, adjustments to physician panel process, and modification issues; gain
insight from Department of Labor and Workforce Development directors on
employee misclassification, "new" request for assistance process, and
ombudsman program; hear a doctor's perspective on everyday pain management
of workers' comp claims; the Attorney Track features an extended session,
along with a panel discussion, on how the new court system will work, as well
as a session on ethical issues arising under the new law; the Employer Track
covers issues such as the new procedure for obtaining medical records, claims
management, workers' comp defenses, best practices for preventing retaliatory
discharge, issues that arise when employees are injured in transit, and
supervisor training in managing claims under the new law; and get a review of
the latest cases from the Tennessee Supreme Court and the Workers'
Compensation Appeals Panels.

FACULTY: Judge Tim Conner, Workers' Compensation Appeals Board
judge; Chief Judge Ken Switzer, chief judge of the Court of Workers'
Compensation Claims; Judge Pam Johnson, Judge Allen Phillips, and Judge
Jim Umsted, of the Court of Workers' Compensation Claims; Robert
Durham, Director of Benefit Review with the Department of Labor &
Workforce Development; Richard Murrell, Director of Quality Assurance
with the Department of Labor & Workforce Development; Scott Yarbrough,
Director of the Compliance Program at the Department of Labor & Workforce
Development; attorneys Barret Albritton, Mary Dee Allen, Fred Baker,
Leslie Bishop, Kitty Boyte, Allison Cotton, John Dreiser, Jason Ensley, Pele
Godkin, Steve Karr, Mary Beth Maddox, Blake Matthews, Stephen
Morton, and Julie Reasonover; and Dr. Jeffrey Hazlewood, who practices
physical medicine and rehabilitation in both Lebanon and Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.

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Family Law Conference for Tennessee Practitioners
Thursday & Friday, December 4-5
Nashville School of Law

TOPI CS: The Family Law Conference for Tennessee Practitioners packs two
days with judges and leading authorities delivering critical family law practice
guidance on the hottest topics and some of the most complex issues youll face,
including, the impact of current technology on divorce discovery, obtaining
restraining/protection orders in cases involving domestic violence, the standard
for changing custody, the effect of cohabitation on alimony, common
evidentiary issues in domestic relations litigation, relocation of the primary
residential parent, drafting tips for prenuptial agreements, agency and DCS
adoption issues, factors to consider in making an equitable division of a
marital estate, a wireless and paperless law office, imputing income to an
unemployed/underemployed parent, ethical considerations for family law
practitioners, and locating, valuing, and dividing assets.

FACULTY: Judge Mike Binkley, circuit court, 21
st
Judicial District; Judge
Robert L. Childers, Shelby County circuit court; Judge Jeff Hollingsworth,
Hamilton County circuit court; and Judge Phillip Robinson, Davidson County
circuit court; and attorneys, Amy J. Amundsen, Memphis; Rebecca Byrd,
Franklin; Dawn Coppock, Strawberry Plains; Lisa J. Hall, Knoxville; Larry
Hayes, Jr., Nashville; Sean Martin, Nashville; Kevin Shepherd, Maryville;
and Greg Smith, Nashville.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Tennessee Real Estate Law Conference
Friday, December 12
Nashville School of Law

TOPI CS: Learn about commercial development and financing in todays
economy; hear about pitfalls in foreclosure proceedings, loss mitigation
solutions, and effects of bankruptcy on foreclosure; get up to date on the new
title insurance endorsements that affect both residential and commercial real
estate law; learn about the impact of the ability-to-pay and mortgage servicing
rules that took effect on January 10; get tips on how to perfect and enforce liens
against real property; get refreshed on ethical concerns facing real estate
attorneys, such as conflict of interest and multiple representations; get up to
date on recent developments in the appellate courts and the legislature; and hear
about other hot topics that affect real estate practitioners in 2014 and beyond.

FACULTY: Kim A. Brown, Sherrard & Roe PLC; Joshua R. Denton, Gullett
Sanford Robinson & Martin PLLC; Robert C. Goodrich Jr., Stites &
Harbison, PLLC; Linda W. Knight, Gullett Sanford Robinson & Martin
PLLC; David Wilson Long, Long, Ragsdale & Waters, P.C.; Madison L.
Martin, Stites & Harbison PLLC; William L. (Billy) Rosenberg, First
American Title Insurance
*Earn up to 7.5 hours of CLE credit, including 1 hour of DUAL credit.

For more information or to register for any of TAMs CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com


IN THIS WEEKS TAM-Bytes

Supreme Court, in upholding 30-day suspension of attorney, says email,
in which attorney called bankruptcy judge bully and clown and
demanded apology for denial of his attorneys fee application, violated
rule against ex parte communications and was also sanctionable as
conduct intended to disrupt a tribunal;
Supreme Court reduces term of Chief Justice to one year, with no limit
on additional consecutive terms;
Court of Appeals holds rights provided to professional employees under
Collaborative Conferencing Act include right to have representative of
his or her organization present, upon employees request, at investigative
interview when employee reasonably believes investigation may result in
disciplinary action against him or her;
Court of Appeals vacates trial courts ruling regarding child support
when trial court failed to consider totality of mothers financial resources,
including substantial income from her trust, which includes dividends,
interest, and capital gains;
Court of Criminal Appeals reverses defendants conviction for rape of
child based on trial courts erroneous admission of photograph of child-
victims vaginal area taken during forensic examination when pediatric
nurse practitioner testified in great detail using schematic drawing and
PowerPoint presentation;
Court of Criminal Appeals finds indictment for employing firearm during
commission of dangerous felony was fatally flawed for failing to name
predicate felony;
Court of Criminal Appeals reverses murder conviction in capital case
when jury foreperson demonstrated bias in making false statements about
her history of domestic abuse;
Sixth Circuit, in drug case, rules officer did not demonstrate probable
cause necessary to stop defendants vehicle when officer recalled few
objective facts to justify traffic stop; and
Davidson Chancery Court rules creditors complaint, as matter of law,
contained direct allegations on every material point necessary to sustain
claim for relief under single entity theory, doctrine recognized and
applied by Tennessee courts to treat shareholders and related
corporations liable as one entity.


SUPREME COURT

PROFESSION OF LAW: In case in which attorney emailed bankruptcy judge
who had denied his application for attorney fees and expenses, calling judge
bully and clown and demanding that he provide written apology for denying fee
application, evidence supported 30-day suspension imposed by Board of
Professional Responsibility; attorneys email violated rule against ex parte
communications and was also sanctionable as conduct intended to disrupt a
tribunal; hearing panel erred by finding attorney in violation of ethical rule that
prohibits attorneys from making false statements about qualifications or integrity
of judge when there was no indication that attorney published false statement
about judges integrity or qualifications by communicating it to third party.
Hancock v. Board of Professional Responsibility, 9/3/14, Nashville, Holder,
concurrence by Clark, partial dissent by Wade, Koch not participating, 21 pages.
http://www.tncourts.gov/sites/default/files/hancockopn.pdf
http://www.tncourts.gov/sites/default/files/hancockconopnclark.pdf
http://www.tncourts.gov/sites/default/files/hancockcd-wadeopn.pdf

GOVERNMENT: Term of Chief Justice of Supreme Court is reduced to one
year from two years, with no limit on additional consecutive terms. I n re
Amendment to Supreme Court Rule 32, 9/2/14, Nashville, 1 page.
http://www.tncourts.gov/sites/default/files/rule32amd.pdf


COURT OF APPEALS

ESTATES & TRUSTS: When plaintiff, decedents ex-wife, alleged that bank
employee, who was handling decedents estate, promised her that bank,
executor of estate, would continue to pay insurance premiums under policy of
health insurance insuring plaintiff, bank paid one premium payment, coverage
under policy lapsed after that due to nonpayment of premium, trial court
granted partial summary judgment to bank, holding that bank cannot be held
liable as executor of the estate of [decedent] because the Plaintiff is not a
beneficiary of that estate, and employee filed affidavit attesting that he acted
on behalf of bank as executor of estate only, and not on behalf of bank in any
other capacity, trial court properly granted bank summary judgment as far as its
individual responsibility is concerned; reviewing record in light most favorable
to plaintiff, and drawing all reasonable inferences in her favor, evidence did not
present genuine issue of material fact regarding capacity in which employee
was acting when he promised to make premium payments, and made one such
payment from funds of estate; only reasonable conclusion trier of fact could
reach is that employee was acting on banks behalf in its capacity as executor
only; there was no evidence suggesting that employee also experienced
attorney made any promise or showed any intention to bind bank individually;
plaintiffs claim that employees promise to pay premiums should be construed
as one for which bank would be individually liable, instead of or in addition to
in its capacity as executor of estate, is precluded by statute of frauds. Russo v.
SunTrust Bank, 8/28/14, ES, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/russodopn.pdf

FAMILY LAW: Trial court did not abuse discretion in designating father as
primary residential parent of parties son when although father had some problems
with assertiveness, he recognized his problem and was aware of need to improve,
father was person of good character with physical and emotional fitness to take
care of child, while mother was physically healthy, she lacked emotional fitness,
mother had fabricated criminal charges against father on several occasions to gain
advantage in case and had sworn falsely in support of application for protective
order, and mothers character had been tarnished by her conduct throughout
proceedings. Christie v. Christie, 8/28/14, MS, Dinkins, 12 pages.
http://www.tncourts.gov/sites/default/files/christiedennis.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts determination of
wifes income (at $33,360 per year) for child support purposes when trial court
failed to consider totality of wifes financial resources, including substantial
income from her trust, which includes dividends, interest, and capital gains
trial court should have considered all income from any source, rather than
simply considering wifes interest income from promissory note; trial court
failed to determine whether income should be imputed to wife based on her
voluntary unemployment although wife possessed two college degrees, she
had only applied for three restaurant positions since parties separation; trial
courts ruling awarding title to jointly-owned real property solely to wife is
vacated, and matter is remanded to trial court to effectuate terms of parties
prenuptial agreement by equally dividing this asset. Heaton v. Heaton, 8/29/14,
ES, Frierson, dissent by Susano, 22 pages.
http://www.tncourts.gov/sites/default/files/heatonopnfinal.pdf
http://www.tncourts.gov/sites/default/files/heatoncmdis.pdf

GOVERNMENT: In case in which City of Norris (City) passed two
annexation ordinances on same day, second territory to be annexed was
contiguous to City only through bordering territory annexed earlier that same
day, and property owner in second annexed territory sued City in bid to stop
annexation of this second territory, trial court properly voided annexation of
second territory because, at time of passage of annexation ordinance by City,
first annexation was not yet operative and second territory was, therefore, not
contiguous to City as required by law. State ex rel. Garrett v. City of Norris,
8/28/14, ES, Swiney, 15 pages.
http://www.tncourts.gov/sites/default/files/stateexrelgarrettopn.pdf

GOVERNMENT: When Union County schoolteacher was twice interviewed
by school administrators in investigation of charges regarding teachers alleged
improper conduct, teachers request to have representative from Union County
Education Association (Association) present with him for investigatory
interview was denied on each occasion, teacher was not disciplined and no
adverse action was taken against him following investigation, and Association
filed suit alleging that Union County Board of Education (Board) violated
Professional Educators Collaborative Conferencing Act of 2011, trial court
erred in granting Board summary judgment on ground that Association had no
injury in fact and therefore lacked standing to proceed with this action; rights
provided to professional employees under Section 603 of Collaborative
Conferencing Act include Weingarten right to have organizational
representative present, upon employees request, at investigative interview
where employee reasonably believes investigation may result in disciplinary
action against him or her; Association has organizational standing to pursue
action on behalf of its members; judgment of trial court is vacated, and case is
remanded. Union County Education Association v. Union County Board of
Education, 8/28/14, ES, Susano, 14 pages.
http://www.tncourts.gov/sites/default/files/unioncoopn.pdf


COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of rape of child, trial
judge committed reversible error in admitting photograph of child-victims
vaginal area taken during forensic examination; given fact that pediatric nurse
practitioner (nurse) testified extensively and in great detail at trial using
schematic drawing and PowerPoint presentation to explain construction of
vaginal area and reasons for lack of injury to victims vaginal area, photo was
uncalled for and had almost no probative value on issues not covered by nurses
testimony; in light of fact that state had no physical proof of defendants guilt
proof against defendant came primarily from victims testimony and fact that
primary effect of photo was to elicit sympathy for victim and contempt for
defendant while adding nothing of evidentiary value to states case, admission
of photo was not harmless error; defendants conviction and sentence are
reversed, and case is remanded to trial court for new trial. State v. Chesteen,
8/29/14, Jackson, Ogle, 13 pages.
http://www.tncourts.gov/sites/default/files/chesteenjamesopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of
especially aggravated kidnapping, especially aggravated robbery, aggravated
robbery, aggravated burglary, and employing firearm during commission of
dangerous felony, indictment for employing firearm during commission of
dangerous felony is fatally flawed for failing to name predicate felony there is
nothing within text of indictments to distinguish that aggravated burglary
charge was meant to serve as predicate dangerous felony to firearms charge,
rather than especially aggravated kidnapping charge; indictment for employing
firearm during commission of dangerous felony is missing essential element
and is, therefore, void for lack of adequate notice; judgment of trial court is
reversed, and charge of employing firearm during commission of dangerous
felony is dismissed. State v. Duncan, 8/27/14, Jackson, Smith, 23 pages.
http://www.tncourts.gov/sites/default/files/duncanwillieopn.pdf

CRIMINAL PROCEDURE: Petitioner was convicted of first degree
premeditated murder of his wife in 1999 and was sentenced to death, and post-
conviction court denied petitioners request for post-conviction relief of his
conviction and sentence, because jury foreperson demonstrated bias in making
false statements about her history of domestic abuse juror did not disclose her
relevant history during voir dire and misrepresented her relevant history on
juror questionnaire petitioner was denied his constitutional right to fair and
impartial jury; jurors failure to disclose that she was victim of domestic
violence in capital murder trial involving domestic violence is not insignificant;
post-conviction courts judgment is reversed, petitioners conviction and death
sentence are reversed, and case is remanded for new trial. Faulkner v. State,
8/29/14, Jackson, Ogle, 126 pages.
http://www.tncourts.gov/sites/default/files/faulknerrobertlatestopn8-26-14.pdf


SIXTH CIRCUIT COURT OF APPEALS

CIVIL PROCEDURE: In suit by plaintiff, in her capacity as co-trustee of
testamentary trusts set up by her deceased aunt (decedent) against her
investment counselor and broker dealer (defendant) alleging that its agent made
incompetent investment decisions 10 years earlier that cost trusts over half their
value, district court properly granted defendant summary judgment based on
limitation defense; undisputed facts established prima facie defense that
plaintiffs claims are time barred when large investment losses incurred by
trusts mostly occurred between 4/00 and 12/02, plaintiff lays cause of losses
investing trust assets in high growth stock based annuities, and aggravating
losses by use of margin debt to fund annuity purchases at feet of defendants
agent and his recommendations, accepting plaintiffs theory, any breach of duty
or negligence by defendant must have occurred at earliest around 4/00, when
estate account was first opened and assets from decedents personal investment
account were transferred, and at latest in 11/05, after agents employment with
defendant ended, and complaint was filed in 2011, beyond three-year statute of
limitation; information about allocation of investments and amount of losses
was readily available to plaintiff, placing her on inquiry notice, and her
response that she never questioned agent or examined multitude of statements
is no excuse; plaintiffs tolling argument fails because she cannot show that
she exercised reasonable care and diligence in pursuing her claim. Smith v.
J .J .B. Hilliard, W.L. Lyons LLC, 9/3/14, Lawson, 22 pages, N/Pub.
http://www.tncourts.gov/sites/default/files/unioncoopn.pdf

CRIMINAL PROCEDURE: District court erred in denying defendants
motion to suppress drugs discovered during traffic stop when officer did not
demonstrate probable cause necessary to stop defendants vehicle officer
recalled few objective facts to justify traffic stop, stating only that he
remembered that weather was clear, that defendant probably was not speeding,
and that defendant did not have to slam on his brakes to avoid hitting car in
front of him, and officer could not recall speed vehicles were traveling, amount
of distance between them, or for how long period defendant drove too closely to
car in front of him; defendants two drug convictions are reversed, and case is
remanded for further proceedings. United States v. Tullock, 8/27/14, Stranch,
10 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0670n-06.pdf


TRIAL COURTS

COMMERCIAL LAW: When plaintiffs, creditors, filed suit and were
awarded judgment against American Style Renovations, Inc. (ASR), plaintiffs
collected $40,000 on judgment but claim that assets of ASR are being
liquidated, plaintiffs, in effort to recover remaining $202,015 of judgment, seek
to collapse any separate legal status of defendants ASRs individual
shareholders, Ross and Teresa Suber, alleged related alias entities of Teresa
Suber, Brand New Girl and American Style Enterprises, and limited liability
company in which Subers are members, American Style Properties, KY, LLC
(KY, LLC) and treat them as single entity, and hold defendants liable for
$202,015 judgment against ASR, plaintiffs stated viable claim under Tennessee
law, and KY, LLCs motion to dismiss is denied; as matter of law, plaintiffs
complaint contains direct allegations on every material point necessary to
sustain claim for relief under single entity theory, doctrine recognized and
applied by Tennessee courts to treat shareholders and related corporations liable
as one entity. Big Borassa Music LLC v. Suber, 6/16/14, Davidson Chancery,
Lyle, 12 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