TAM-BYTES

December 15, 2014

Vol. 17, No. 50
2014 TAM CLE CALENDAR

Webinar
Where Family Law and International Issues Collide: Relocation and
Child Abduction Issues, 60-minute webinar presented by Rebecca
McKelvey Castaneda, with Stites & Harbison in Nashville, on Wednesday,
February 25, 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

Workers Comp Appeals Board says that if evidence was offered for
admission at expedited hearing by representative of employer beyond
scope of what was asked by employees counsel during direct
examination, it was error to allow introduction of such evidence, but
rules any error was harmless;
Court of Appeals, in health care liability suit, says that plaintiffs failure
to satisfy pre-suit notice requirements before filing of complaint does not
prevent that plaintiffs filing from being considered commencement
within meaning of saving statute;
Court of Criminal Appeals, in murder case, finds neither marital
communications privilege nor clergy-penitent communications privilege
applicable with regard to statements made by defendant to his wife and
pastor, respectively, concerning victim both before and after victims
disappearance;
Court of Criminal Appeals holds TRCrP 6, which provides that [n]o
witness shall be indicted for any offense in relation to which the district
attorney general has compelled the witness to testify before the grand
jury, applies only to compelled testimony before state grand jury within
State of Tennessee, and not to compelled testimony before federal grand
jury;
Court of Criminal Appeals says that when juror has disclosed information
during voir dire questioning that directly lends credibility to victims
testimony, jurys impartiality is compromised;

 Court of Criminal Appeals says that although officers encroached upon

curtilage of defendants home to conduct knock and talk at back door
of his residence, trial judge properly denied defendants motion to
suppress drugs found on defendants person that were discovered
pursuant to search incident to defendants valid arrest on other charges;
and
Sixth Circuit, in suits challenging same-sex marriage recognition bans in
Tennessee and other states, says neither Due Process Clause nor Equal
Protection Clause requires states to expand definition of marriage to
include same-sex couples.
WORKERS COMP APPEALS BOARD
WORKERS COMPENSATION: Employer corporation cannot practice law,
cannot represent itself in Court of Workers Compensation Claims, and cannot
seek to introduce evidence or examine witness through duly authorized
representative; because trial judge specifically held that his decision was based
primarily on the testimony of witness called by employees counsel, and
because employee apparently failed to offer any testimony to show that he was
on premises in his capacity as employee at time of incident, any error in
introduction of evidence offered for admission by representative of employer
was harmless. Higgins v. Big K Food Market & Liquors Inc., 12/8/14, Conner,
14 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1030&context=utk_workerscomp

COURT OF APPEALS
INSURANCE: When homeowners policy contained contractual one-year
statute of limitation, and insured filed suit 18 months after loss occurred, trial
court erred in denying insurers motion for summary judgment; under terms of
insurance policy, settlement period began when insured submitted his proof of
loss, and when insurer never denied insureds claim, insureds cause of action
accrued when settlement period or immunity period ended 60 days after insured
filed his proof of loss, and hence, one-year contractual statute of limitation had
already expired when suit was filed. Meyers v. Farmers Aid Association of
Loudon County, 12/9/14, WS at Knoxville, Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/meyerslloydcorrected.pdf

PROPERTY: Abandonment of county road and even authorization to close it

does not affect private rights of abutting landowners to easements of access;

owners of property abutting once public road continue to have private access
easement over that road to their property even after road loses its character as
public road. Webb v. Douglas, 12/9/14, WS, Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/webbbopn.pdf

CIVIL PROCEDURE: When plaintiff filed medical malpractice suit against

defendants on 5/6/11, complaint stated that pre-suit notice had been given to
defendants, defendants filed motion to dismiss on basis that pre-suit notices sent
to them by plaintiff were not compliant with TCA 29-26-121, before trial court
ruled on motion, plaintiff filed notice of voluntary nonsuit, trial court dismissed
suit without prejudice in accordance with notice of nonsuit, plaintiff gave
new pre-suit notices to defendants, and plaintiff filed suit on 2/29/12,
application of tolling period provided by saving statute was warranted, and trial
courts dismissal of plaintiffs complaint was error; although pre-suit notice
requirements must be given under TCA 29-26-121, unless properly excused,
plaintiffs failure to satisfy them before filing of complaint does not prevent that
plaintiffs filing from being considered commencement of action within
meaning of saving statute. Cartwright v. DMC-Memphis Inc., 12/9/14, WS,
Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/cartwrightopn.pdf

CIVIL PROCEDURE: When plaintiffs purchased property at foreclosure and

filed forcible entry and detainer action against occupant of real estate, general
sessions court awarded possession, and defendant filed notice of appeal to circuit
court claiming that she purchased real estate prior to foreclosure sale, grant of
summary judgment to plaintiffs is affirmed; defendant, in her individual capacity,
lacked standing to appeal general sessions judgment granting possession to
plaintiffs when defendant chose to utilize corporation to purchase real estate;
corporation is distinct legal entity, even if defendant is only owner of all of its
stock. Connell v. Scullark, 12/8/14, WS, Gibson, 5 pages.
http://www.tncourts.gov/sites/default/files/connellgaryopn.pdf

CIVIL PROCEDURE: In case in which appellant, appellees only child, sought

conservatorship over appellee after appellee suffered stroke, appellee filed TRCP
12.02(6) motion to dismiss petition, and trial court, in memorandum opinion,
denied appellees motion to dismiss but considered matters outside pleadings,
converted motion to dismiss to motion for summary judgment, and sua sponte
granted appellee summary judgment, judgment is vacated and case is remanded to
allow parties opportunity to engage in discovery in accordance with TRCP 56
prior to trial courts ruling on such motion; until appellant is allowed reasonable
opportunity to conduct discovery, and is allowed to present her opposition to
motion for summary judgment, trial courts sua sponte grant of summary

judgment to appellee is premature. In re Conservatorship of Starnes, 12/10/14,

WS, Armstrong, 11 pages.
http://www.tncourts.gov/sites/default/files/inreconservatorshipstarnesopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In murder case, trial court did not err in concluding that marital
communications privilege did not apply to statements made by defendant to his
wife (Emily) concerning victim (mother of defendants illegitimate child) both
before and after victims disappearance when none of conversations were given
in confidential relationship by time of victims disappearance, Emily had
already had divorce papers prepared, she testified that marriage was over at
that time, having collapsed under weight of financial difficulty, infidelity, and
victims pursuit of child support, and by time of trial, couple was divorced; trial
court did not err in concluding that clergy-penitent communications privilege
did not apply to statements made by defendant to his pastor concerning victim
after victims disappearance when four conversations defendant had with pastor
following victims disappearance did not involve confidential
communications; given that pastor made it clear during each of first three
conversations with defendant that his paramount concern was finding victim, no
spiritual counseling took place; although stated purpose of defendants fourth
conversation with pastor was spiritual counseling, that conversation took place
in presence of defendants wife and children, and challenged statement was
actually made to defendants wife; only for sentence of death does Tennessee
Code require that jury find that aggravating circumstances outweigh mitigating
circumstances beyond reasonable doubt. State v. Hancock, 12/12/14, Nashville,
Witt, 10 pages.
http://www.tncourts.gov/sites/default/files/hancockbillyjasonopn.pdf

CRIMINAL PROCEDURE: In murder case, trial judge did not err in denying
defendants motion to dismiss presentment based on fact that defendant was
subpoenaed to testify before grand jury before filing of her presentment; TRCrP
6 applies only to proceedings in state grand juries within State of Tennessee and
does not apply to proceedings in any federal grand jury within State of
Tennessee or elsewhere because defendant was subpoenaed to testify before
federal grand jury, TRCrP 6 was not applicable. State v. Coleman, 12/9/14,
Knoxville, Woodall, concurrence by Thomas, 25 pages.
http://www.tncourts.gov/sites/default/files/colemanvanessaopn.pdf

CRIMINAL LAW: In case in which member of jury venire (Watkins)

admitted to having been victim of child sexual abuse more than 30 years prior
to trial, but had never disclosed abuse to anyone, not even her husband or

parents, other potential jurors from venire handed Watkins Kleenex and
expressed sympathy to her, empaneled jury then heard defendants case, which
involved testimony of child sexual abuse victim, who did not disclose alleged
abuse for some period of time after abuse occurred, and defendant was
subsequently convicted of rape and aggravated sexual battery, because victims
credibility was of extreme importance to states case and was only evidence
state had to prove its case against defendant, and delay in victims disclosure of
abuse was one area defendant could use to attack her credibility, defendants
ability to cross-examine victim on this issue was undermined by fact that jury
had just witnessed credible member of jury pool confess that she had been
abused more than 30 years before trial and had never disclosed abuse to anyone;
when juror has disclosed information during voir dire questioning that directly
lends credibility to victims testimony, jurys impartiality is compromised; trial
court abused discretion in failing to declare mistrial because impartial verdict
could not be reached by jury that had been subjected to Watkins disclosure and
had not been given instructions about how to assimilate her disclosure of abuse;
defendants convictions are reversed, and case is remanded for new trial;
although jurors (Nixs) failure to disclose that his father was tried for sexually
abusing his niece created presumption of bias, this presumption was overcome
when Nix did not deliberate with rest of jury because he was dismissed during
trial, and Nix stated that he did not discuss his fathers case with any of other
jurors. State v. Romero, 12/12/14, Knoxville, Wedemeyer, 24 pages.
http://www.tncourts.gov/sites/default/files/romerosantosopn.pdf

CRIMINAL PROCEDURE: Police officers encroached upon curtilage of

defendants home to conduct knock and talk at back door of his residence
defendants backyard and two back doors were within curtilage of his home for
purposes of both Fourth Amendment and Tenn. Const. Art. I, Sec. 7 and there
is no bright line rule stating that officer may approach back door of house
before first approaching front door; officer created exigency by entering into
defendants backyard officer testified at suppression hearing that he did not
smell methamphetamine odor until he had already entered defendants curtilage
and walked onto rear deck of residence, in essence, creating exigency by
entering into defendants backyard; police-created exigent circumstances cannot
be used to justify warrantless entry into constitutionally-protected area;
although entry into defendants backyard and subsequent search of defendants
residence was unlawful, trial court did not err in denying motion to suppress
drugs found on defendants person that were discovered pursuant to search
incident to defendants valid arrest on other charges. State v. Womack, 12/5/14,
Nashville, Thomas, 15 pages.
http://www.tncourts.gov/sites/default/files/womackjonathanopn.pdf

CRIMINAL PROCEDURE: Defendants crossing of double yellow lines on

single occasion is sufficient to provide probable cause to initiate traffic stop
under either TCA 55-8-121 or 55-8-123. State v. Davis, 12/8/14, Knoxville,
Witt, 5 pages.
http://www.tncourts.gov/sites/default/files/daviswilliamwopn.pdf

SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: When borrower, who was facing foreclosure, asked
Bank of America (BOA) to modify her repayment plan under federal Home
Affordable Modification Program (HAMP), BOA denied modification on
grounds of insufficient documentation, and borrower filed suit seeking to quiet
title and alleging that because her mortgage note was immediately securitized
sold to pool of anonymous investors through mortgage trust BOA falsely
induced her into signing mortgage by pretending it was actual lender, that her
title had become clouded on account of transfer and securitization of note, and
that BOA fraudulently induced her to seek modification of her repayment plan
while either knowing it lacked authority to modify her repayment terms or else
intending to drive her into foreclosure by giving her run-around, district court
properly dismissed claims under FRCP 9(b) and 12(b)(6); borrower did not
adequately plead fraud claim in relation to origination of her loan; borrowers
complaint that BOA refused to modify her repayment terms under HAMP does
not fall within definite of adverse action. Thompson v. Bank of America,
12/5/14, Siler, 15 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0287p-06.pdf

CONSTITUTIONAL LAW: In case in which same-sex couples from

Tennessee, Michigan, Ohio, and Kentucky filed suits challenging same-sex
marriage recognition bans in their respective states, neither Due Process Clause
nor Equal Protection Clause requires states to expand definition of marriage to
include same-sex couples; not one of plaintiffs' theories makes case for
constitutionalizing definition of marriage and for removing issue from place
it has been since countrys founding, i.e., in hands of state voters. DeBoer v.
Snyder, 11/6/14, Sutton, dissent by Daughtrey, 64 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf

TRIAL COURTS
GOVERNMENT: Obligation in 42 USC 1320a-7k(d) to report and return
overpayments is not limited to fraudulent taking or concealing of funds from
government; regardless of whether funds of overpayment came into persons

possession by mistake, neglect, oversight, or fraud, once person knows there is

overpayment, person shall, as provided in 42 USC 1320a-7k(d)(1), report,
return, and notify government; plaintiff was required by regulatory scheme to
refund monies it received from TennCare related to services of On-Call
Staffing, Inc. (On-Call) nurse who was not licensed when she provided
services, plaintiff did so and then filed suit against On-Call, and this
combination of law and facts does not constitute voluntary payment and, thus,
is subject to recoupment under Tennessee law by subrogation or indemnity.
Angel Private Duty & Home Health Inc. v. On-Call Staffing Inc., 11/24/14,
Davidson Chancery, Lyle, 4 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