TAM-BYTES

February 16, 2015

Vol. 18, No. 7
2015 TAM CLE CALENDAR

Webinars
Telephone Consumer Protection Act: One Year After FCC Changes, 60minute webinar presented by Stan Herring, with Watts & Herring in
Birmingham, on Tuesday, March 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Termination of Parental Rights: Recent Developments in Tennessee, 60minute audio conference presented by Kevin Shepherd, Maryville attorney,
on Wednesday, March 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Fair Debt Collection Practices Act: Understanding Debtor Protections
and Creditor Boundaries, 60-minute webinar presented by Hugh Ward,
with Young Williams Law Firm, PC, in Knoxville, on Thursday, March 26, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Automobile Insurance: Researching Coverage and Negotiating with the
Adjuster, 60-minute audio conference presented by Steven Fuller, with
Stewart Stallings & Associates in Brentwood, on Tuesday, March 31, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Health Care Liability: Latest Developments in Tennessee, 60-minute
webinar presented by Chris Tardio, with Gideon, Cooper & Essary in
Nashville, on Thursday, April 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for Tennessee Attorneys

*Now in its 8th year!*
WHEN: Friday, May 8
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1
hour of DUAL credit
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon Bass,
Law Offices of John Day; Daniel Clayton, Kinnard, Clayton & Beveridge; C. J.
Gideon, Gideon, Cooper & Essary; Ben Harrison, Cornelius & Collins; Marty
Phillips, Rainey, Kizer, Reviere & Bell; and Tom Pinckney, Of Counsel,
Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of
good faith requirements; practical considerations for handling a health care
liability claim on behalf of an injured patient; techniques for deposing an
expert; physician credentialing and other hospital liability issues; trial tips and
tactics from the defense perspective; deposition strategies; the use of
technology in a health care liability case; review of recent health care liability
appellate court cases; a panel discussion of hot topics in health care liability
actions; and ethical issues in handling medical records, including HIPAA
compliance.

Tennessee Business Law Conference

*New for 2015!*
WHEN: Friday, May 15
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1
hour of DUAL credit
FACULTY: Alexander J. Davie, Riggs Davie, Nashville; Keith C. Dennen,
Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton, Franklin; J.
Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga; Mark Ison, Sherrard
& Roe, Nashville; Thomas K. Potter, III, Burr & Forman, Nashville; Andrew J.
Pulliam, Wyatt, Tarrant & Combs, Nashville; and Richard Spore, Bass, Berry
& Sims, Memphis

HIGHLIGHTS: Piercing the corporate veil, including factors to consider,

parent/subsidiary liability, reverse piercing, and effect of Hobby Lobby;
liability and fiduciary duties of corporate officers and directors to the
corporation and the shareholders; a step-by-step guide to a business divorce
from fact-finding to the end game; recent changes to the Tennessee Nonprofit
Corporation Act optional changes to governing documents; key
considerations in selecting a business entity for example, using series LLCs
and new hybrid alternatives; drafting LLC operating agreements key
provisions to include; forming a professional service business including
management services and friendly PC arrangements involving
nonprofessionals; and ethics for attorneys in business disputes including
understanding the scope of your representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or visit
us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court, in issue of first impression, holds child abuse and
neglect statute, when read in combination with spiritual treatment
exemption, as set forth in TCA 39-15-402(c), does not violate due
process principles;
Supreme Court extends 30-day solicitation ban on attorneys to divorce
and legal separation cases;
Workers Comp Appeals Board, in ruling claimant, concrete worker who
fell while performing work at job site, was employee, says fact that
employer chose to rely heavily on claimants technical expertise does
not tend to make claimant independent contractor;
Court of Appeals holds that signatures of witnesses on affidavit, without
having signed will, does not satisfy statutory formalities for executing
will in Tennessee;
Court of Appeals says failure to tender appropriate funds, as required by
TCA 67-5-2504(c), when filing petition to set aside tax sale is not
prerequisite for relief;
Court of Appeals reverses trial courts finding that Assistant City Attorney
had apparent authority to enter into settlement agreement for amount
exceeding $500 without mayors approval as required by city charter;
Court of Criminal Appeals rules criminal responsibility statute is not
unconstitutionally vague;
Court of Criminal Appeals rules motion to withdraw guilty plea should
have been granted when neither counsel nor trial court informed

defendant of community supervision for life requirements, and counsel

knew that defendant had not read form stating those requirements;
Court of Criminal Appeals says investigative file of TBI was
confidential and not subject to disclosure under Public Records Act; and
Court of Criminal Appeals grants new sentencing hearing when state
breached plea agreement, in which it stated it would not take position as
to whether defendants sentence should be deferred, but argued against
deferral at hearing.

SUPREME COURT
CRIMINAL LAW: Child abuse and neglect statute, when read in combination
with spiritual treatment exemption, as set forth in TCA 39-15-402(c), does
not violate due process principles; spiritual treatment exemption, which
precludes prosecution of parents who provide [] treatment by spiritual means
through prayer alone in accordance with the tenets or practices of a recognized
church or religious denomination by a duly accredited practitioner thereof in
lieu of medical or surgical treatment, is not unconstitutionally vague; because
exemption is effectively limited to members of religious groups that closely
resemble Christian Science Church, terms at issue, such as treatment, prayer
alone, tenets or practices, practitioner, and recognized church or religious
denomination, are not so vague that scope of exemption cannot be
ascertained. State v. Crank, 2/13/15, Knoxville, Wade, 4-0, 19 pages.
http://www.tncourts.gov/sites/default/files/crankjacquelineopn.pdf

PROFESSION OF LAW: Prohibition in RPC 7.3(b)(3) against any

solicitation within 30 days of certain actions is expanded to include solicitation
within 30 days before filing of complaint for divorce or legal separation. In re
Supreme Court Rule 8, RPC 7.3(b)(3), 2/12/15, Nashville, 6 pages.
http://www.tncourts.gov/sites/default/files/docs/order_granting_rule_amendment_2.pdf

PROFESSION OF LAW: Supreme Court adopts amendments to Rule 31 on

alternative dispute resolution. In re Petition for Adoption of Amended
Supreme Court Rule 31, 2/12/15, Nashville, 9 pages.
http://www.tba.org/sites/default/files/SCOrderR31_02122015.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When claimant, concrete worker, fell and
fractured his ankle while performing work at job site, evidence did not

preponderate against trial courts conclusion that claimant was employee, not
independent contractor, when claimant was hired to supervise particular job
because of his specialized knowledge regarding vertical concrete construction,
employer retained right to control conduct of work, claimant and his crew were
expected to report to work at regular hours each day and were told not to
exceed 40 hours per week, and claimant was not hired to oversee project
outside normal scope of companys business but was hired to supervise project
that was regular part of companys business; fact that employer chose to rely
heavily on claimants technical expertise does not tend to make claimant
independent contractor; neither statute nor applicable rules compels hearing
prior to issuance of interlocutory order. Thompson v. Concrete Solutions,
2/10/15, Conner, 24 pages.
http://trace.tennessee.edu/utk_workerscomp/49
http://trace.tennessee.edu/utk_workerscomp/40

COURT OF APPEALS
ESTATES & TRUSTS: Trial court erred in determining that will was properly
executed pursuant to requirements of TCA 32-1-104 when witnesses to will
only signed affidavit of attesting witnesses and not will itself; signatures of
witnesses on affidavit, without having signed will, does not satisfy statutory
formalities for executing will in Tennessee; by allowing affidavit to be written
on the will or, if that is impracticable, on some paper attached to the will,
legislature has drawn distinction between affidavit of attesting witnesses and
their signatures on will. In re Estate of Morris, 2/9/15, WS at Nashville,
Armstrong, 8 pages.
http://www.tncourts.gov/sites/default/files/inreestateofmorrisopn.pdf

TAXATION: Although issue has been addressed by this court with conflicting results,
failure to tender appropriate funds, as required by TCA 67-5-2504(c), when filing
petition to set aside tax sale is not prerequisite for relief. Allen v. Anderson County,
2/12/15, ES, McClarty, 7 pages.
http://www.tncourts.gov/sites/default/files/allenopn.pdf

CIVIL PROCEDURE: When appellant was executor of his mothers estate,

appellants siblings (appellees) brought suit against appellant in Knox County
Chancery Court for depletion of estate, alleging that he exercised undue
influence over decedent to obtain certain funds for himself and his wife, jury
awarded estate $284,800, while appeal of award was pending, Probate Division
of Knox County Chancery Court heard appellees motion filed in estate case to
have appellant removed as executor of estate, and Probate Division granted
appellees motion to remove appellant as executor, trial court did not err by

deciding motion for removal while appeal in depletion case was pending. In re
Estate of McMillin, 2/12/15, WS at Knoxville, Armstrong, 5 pages.
http://www.tncourts.gov/sites/default/files/estate_of_mcmillin.pdf

CIVIL PROCEDURE: In appeal of trial courts denial of petition to establish

lost will, conflicting inferences may be drawn from material facts that are
relatively undisputed, and hence, it was incumbent upon trial court to provide
clear understanding of basis of its decision, which trial court failed to do; when
trial court fails to make requisite findings of fact, appellate court can conduct de
novo review of record to determine where preponderance of evidence lies or, in
alternative, remand case to trial court with instructions to make requisite
findings of fact and conclusions of law and enter judgment accordingly; de
novo review is not appropriate due to conflicting inferences that can be drawn
from the undisputed facts pertaining to dispositive issue of whether someone
other than decedent, who had opportunity and motive, destroyed original will;
remanding case to trial court with instructions to make requisite findings of fact
is also not available because judge who tried case has retired; TRAP 36
provides additional remedy, authorizing appellate courts to grant the relief on
the law and facts to which the party is entitled or the proceeding otherwise
requires; because of applicable legal principles and realization that conflicting
inferences can be drawn from undisputed material facts pertaining to dispositive
issue, trial courts failure to comply with TRCP 52.01 requires vacating
judgment and remanding for new trial on petition to establish lost will. In re
Estate of Oakley, 2/10/15, MS, Clement, 18 pages.
http://www.tncourts.gov/sites/default/files/estate_of_oakley_opn.pdf

GOVERNMENT: In case in which former employee (plaintiff) filed suit

against City of Memphis (City) to enforce settlement agreement he purportedly
reached with Assistant City Attorney for amount in excess of $500 Memphis
City Charter grants City Attorney independent authority to settle claims against
City for amounts less than $500, but settlements for amounts exceeding $500
must be entered by and with the approval of the Mayor trial court erred in
holding that Assistant City Attorney acted with apparent authority to enter
settlement agreement; given infinitely broad spectrum of matters that could
conceivably be resolved by City through settlement agreements, no reasonable
person could infer that by approving any number of settlement agreements,
mayor impliedly waived all objections in future matters; while there may be
circumstances under which mayor could impliedly grant authority to City
Attorney to enter into settlements exceeding $500 through his course of dealing
with City Attorneys Office, such circumstances did not exist when evidence
did not reveal any conduct or course of dealing between mayor and City
Attorneys Office that would evidence mayors intent that Assistant City

Attorney have such authority in this case. Savage v. City of Memphis, 2/9/15,
WS, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/savagemichaelopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was convicted of second
degree murder, employing firearm during commission of dangerous felony, and
burglary of automobile, because second degree murder is not enumerated
dangerous felony under TCA 39-17-1324, which enumerates possible
underlying dangerous felonies that support conviction for employing firearm
during commission of dangerous felony, defendants conviction for employing
firearm during commission of dangerous felony is reversed and dismissed. State
v. Johnson, 2/5/15, Jackson, Page, 5 pages.
http://www.tncourts.gov/sites/default/files/johnsonterranceopn.pdf

CONSTITUTIONAL LAW: Criminal responsibility statute is not

unconstitutionally vague; natural and probable consequences rule does not
abrogate criminal responsibility statute but, rather, natural and probable
consequences rule is component of criminal responsibility; it is not necessary
that indictment contain language pertaining to criminal responsibility in order to
sufficiently inform defendant of charges against him or her. State v. Thomas,
2/5/15, Knoxville, Wedemeyer, 50 pages.
http://www.tncourts.gov/sites/default/files/thomasgeorgeopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

aggravated rape as charged in Count 3 of indictment when proof was
insufficient to show that victim suffered bodily injury when asked at trial if
she had any injuries as result of sexual attack, victim responded, No sir, just
throbbing inside, and no additional evidence was presented or elicited by state
to prove bodily injury; victims solitary response that she did not suffer any
injuries as result of incident and just felt throbbing inside fails to rise to
relatively low threshold of proving physical pain; defendants aggravated rape
conviction in Count 3 is reduced to rape conviction. State v. McDowell,
2/10/15, Jackson, Page, 8 pages.
http://www.tncourts.gov/sites/default/files/mcdowellnormanopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of

attempted aggravated burglary when individual who was outside victims
apartment made only cursory attempt at gaining entry by scratching at door
handle and moving it some this cursory attempt did not represent entire course
of action that was corroborative of intent to commit aggravated burglary and

did not constitute substantial step toward completion of aggravated burglary,

defined as entering of habitation, without effective consent of owner and with
intent to commit felony, theft, or assault; trial judge erred by allowing
Computer-Aided Dispatch (CAD) Operational Report to be admitted during
states rebuttal proof when police officer who testified about CAD Operational
Report was patrol officer who was only nominally familiar with dispatch
procedure, and his testimony indicated lack of trustworthiness in CAD
Operational Report because his own report indicated different time for
incoming call. State v. Brown, 2/3/15, Nashville, Page, 19 pages.
http://www.tncourts.gov/sites/default/files/brownthomaswilliamopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to

attempted rape and subsequently filed motion to withdraw his guilty plea, trial
court erred in denying defendants motion when defendants plea was entered
based upon several misunderstandings, which were attributable to counsels
advice; because neither counsel nor trial court informed defendant of
community supervision for life requirements and because counsel knew that
defendant had not read form stating those requirements, including fact that he
would never be eligible for removal from sexual offender registry, defendants
motion to withdraw his guilty plea is granted, and case is remanded for
preliminary hearing on original charges. State v. Cross, 2/4/15, Knoxville,
Wedemeyer, 18 pages.
http://www.tncourts.gov/sites/default/files/crossjoshuaopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to driving

while being habitual motor vehicle offender, officer had reasonable suspicion to
stop defendants vehicle even though information relied upon by officer was
incorrect officer received information from police database that registration
tag attached to defendants pickup truck was assigned to different vehicle;
degree of reliability of source of information possessed by officer was
sufficient to support reasonable suspicion that defendant was committing
violation of law regarding vehicle registration tags, i.e., that registration paper
produced by defendant may have been false registration. State v. Meadows,
2/10/15, Nashville, Woodall, 8 pages.
http://www.tncourts.gov/sites/default/files/meadowskerryrandallopn.pdf

CRIMINAL PROCEDURE: In case in which petitioners, parents of victims

in underlying criminal cases, sought to intervene in those proceedings for
purpose of challenging trial courts order sealing portions of investigative file
of Tennessee Bureau of Investigation (TBI) that was identified during
motions for new trial in underlying cases, petitioners have no statutory or
constitutional right to access sealed confidential information in file; Public
Records Act (PRA) did not grant statutory right of public access to stipulated

portion of TBI file, despite being judicial record, when general requirement
of disclosure in PRA was not intended to trump TBI files specific
confidential designation by General Assembly in TCA 10-7-504(a)(2)(A),
which makes all investigative records of TBI confidential. State v. Cobbins,
2/4/15, Knoxville, Easter, 19 pages.
http://www.tncourts.gov/sites/default/files/christiannewsomopn.pdf

CRIMINAL SENTENCING: In case in which defendant was indicted for

voluntary manslaughter and aggravated assault, defendant pled guilty to lesser
included offense of reckless homicide, pursuant to written plea agreement
signed by defendant and state, state agreed it would take no position at
sentencing hearing as to whether sentence would be deferred pursuant to TCA
40-35-313, and at sentencing hearing, state argued against deferral, stating that
permanent conviction is necessary [so as] not to depreciate the seriousness of
this crime, and trial court sentenced defendant to three years on probation and
denied deferral, concluding there is something permanent about death and
there should be something permanent about this conviction, state breached
plea agreement with defendant; because trial court adopted permanence of
death argument made by state, states error more probably than not affected
judgment or resulted in prejudice to judicial process; because death is always
permanent in homicide cases it cannot be considered as factor for denying
diversion, although circumstance(s) leading to death may be considered; case is
remanded for new sentencing hearing to be held before different judge. State v.
Spang, 2/6/15, Nashville, Holloway, 7 pages.
http://www.tncourts.gov/sites/default/files/spangjaredbooth.pdf

SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: In this civil rights case in which district court
entered consent decree over 20 years ago concerning operation of Arlington
Development Center, district court erred in approving 19th application of People
First of Tennessee (People First) for attorney fees State of Tennessee
consented to pay all of fees requested in first 18 applications for total of about
$3.6 million which, for most part, sought fees for contempt motion that
district court had stricken from docket and People First never renewed and also
sought fees for hours that People Firsts attorneys had chosen to spend
monitoring states compliance with consent decree (even though state had
already paid $10.6 million in fees to monitor whom court had appointed for that
same purpose); People First did not establish that it was prevailing party on its
contempt motion; People First did not show either necessity, or pre-approval by
monitor, or that its putative monitoring work otherwise fell within narrow

confines of another court order. United States v. Tennessee, 2/10/15,

Kethledge, 11 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0024p-06.pdf

ATTORNEY GENERAL OPINION

FAMILY LAW: Passage of Tennessee Constitutional Amendment 1 on
11/4/14, which added new section to Tennessee Constitution stating people
retain the right through their elected state representatives and state senators to
enact, amend, or repeal statutes regarding abortion, including, but not limited
to, circumstances of pregnancy resulting from rape or incest or when necessary
to save the life of the mother, supersedes holdings of Planned Parenthood v.
Sundquist, 38 SW3d 1 (Tenn. 2000), which are in conflict with provisions of
constitutional amendment. Attorney General Opinion 15-13, 2/6/15, 5 pages.
http://www.tn.gov/attorneygeneral/op/2015/op15-13.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