TAM-BYTES

March 14, 2016

Vol. 19, No. 11

TAM Webinars
Contract Negotiation Strategies for Business Buyers and Sellers in
Tennessee, 60-minute webinar presented by Nathan L. Barrett, with
Cody Allison & Associates, in Nashville, on Wednesday, April 6, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Mechanics and Materialmens Lien Act: What Attorneys
Must Know, 60-minute webinar presented by Chris Dunn & Joe
Watson, with Waller, Lansden, Dortch & Davis, in Nashville, on
Thursday, April 7, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Data Breach and Privacy Law: What Tennessee Attorneys Must
Know, 60-minute webinar presented by Russell Taber, with Riley
Warnock & Jacobson, in Nashville, on Tuesday, April 26, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Types of Damages in Personal Injury Suits: Essential Practice Tips
for Tennessee Attorneys, 60-minute webinar presented by Brad
Gilmer, with The Hardison Law Firm in Memphis, on Thursday, April
28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

On-Site Events

Medical Malpractice Conference for

Tennessee Attorneys
WHEN: Friday, May 13
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon
Bass, Law Offices of John Day, Brentwood; Philip N. Elbert, Neal &
Harwell, Nashville; Ben Harrison, Jr., Cornelius & Collins, Nashville;
Marty Phillips, Rainey, Kizer, Reviere & Bell, Jackson; Chris Tardio,
Gideon, Cooper & Essary, Nashville; and Mathew Zenner, McCune,
Zenner and Happell, Brentwood
HIGHLIGHTS: Recent developments in pre-suit notice and certificate
of good faith requirements; new summary judgment procedure; how to
turn the tables on a plaintiffs expert; defenses, such as patient
negligence, that may be raised to defeat a plaintiffs healthcare liability
claim; trial tips and tactics from both a plaintiffs and defense perspective;
deposition strategies to help you win at trial; using technology to excel as
an advocate in a healthcare liability case; review of recent healthcare
liability appellate court decisions; a panel discussion of hot topics in
healthcare liability actions; and ethical issues that arise when dealing with
evidence and experts.

Tennessee Business Law Conference

WHEN: Friday, May 20
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: A. Neal Graham, Harris Shelton Hanover Walsh PLLC,
Memphis; L. Kevin Levine, L. Kevin Levine, PLLC, Nashville; Ralph

Levy, Jr., Dickinson Wright PLLC, Nashville; Chancellor Ellen Hobbs

Lyle, Davidson County Chancery Court; David B. Parsons, Nashville
attorney; Richard R. Spore, III, Bass, Berry & Sims, PLC, Memphis; and
Bryan K. Williams, Gullett Sanford Robinson & Martin PLLC, Nashville.
HIGHLIGHTS: Survey of business law issues in the Tennessee Business
Court Pilot Project; creative practices for handling business disputes to avoid
litigation; mistakes to avoid in drafting LLC operating agreements; what
every attorney needs to know when litigating a business dispute in
Tennessee; what federal tax issues arise when operating a limited liability
company; key issues in drafting an acquisition agreement; top 10 negotiation
strategies for obtaining a settlement in a business dispute; and ethics for
attorneys in business disputes including adequacy of fees and charges.
For more information call us at (800) 274-6774 or visit www.mleesmith.com.
IN THIS WEEKS TAM-Bytes
Supreme Court rules saving statute applied to save plaintiffs action
that was filed within extended statute of limitation set by tolling
agreement, was voluntarily nonsuited, and refiled within one-year
period allowed by saving statute;
Workers Comp Appeals Board says prospective employers
invitation for applicant to attend pre-employment physical exam
cannot, standing alone, create putative or implied employment
relationship for purposes of workers compensation law;
Court of Appeals, in issue of first impression, holds admission of
vicarious liability does not insulate employer from defending
independent negligence claims;
Court of Appeals rules trial court properly found non-compete
provision in employment agreement unenforceable based on fact
that extensive training provided by employer to employee to help
him become real estate appraiser was not type of legitimate
business interest worthy of protection by covenant not to compete;
Court of Appeals says trial court erred by ordering parties to attend
parenting classes before filing suit to modify parenting plan in
future, but properly required that they submit to mediation before
seeking further relief from court;

 Court of Appeals holds Tennessee law applied when one-vehicle

accident occurred while parties were in Florida intending to stay
in Florida for extended vacation but remained domiciled in
Tennessee; and
Court of Criminal Appeals, in murder case, rules that trial court
properly admitted evidence of defendants internet history, which
showed defendant had conducted several internet searches for and
visited pornographic websites depicting women being raped day
before murder, when evidence was admissible to show that
defendant had staged crime scene to make it appear that victim had
been raped in order to deflect suspicion from himself.

SUPREME COURT
CIVIL PROCEDURE: Party filing suit complied with tolling agreement
stating that the Filing Deadline shall be tolled so that the statute of
limitation will not expire until a period of One Hundred Twenty (120) days
after the United States Court of Appeals [for] the 6th Circuit has issued an
opinion by filing first suit within extended statute of limitation set by
agreement, and saving statute applies to save action refiled within one year
of nonsuit of first suit; if parties to tolling agreement wish to foreclose
application of saving statute, they must include clear, explicit language in
tolling agreement to that effect; otherwise, without such explicit indication
that parties intend to circumvent saving statute, it will normally apply.
Circle C Construction LLC v. Nilsen, 3/7/16, Knoxville, Lee, partial
dissent by Kirby, 3-1, 11 pages.
http://www.tncourts.gov/sites/default/files/circlecconstruction.opn_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee worked at Glavo
Smith Kline (GSK) facility, GSK had contracted with Kenco Logistics
Services, LLC (Kenco) to operate facility, employee became aware that
Genco Distribution Systems (Genco) had been awarded contract to
operate GSK facility, any Kenco employee who wanted to remain
employed at facility and become Genco employee had to satisfy four
prerequisites, including completing pre-employment physical exam,
during physical performance evaluation, employee lifted 50-pound box

and reported suffering lumbar injury, injury did not arise primarily out of
or occur in course and scope of employment with Kenco; there is no
Tennessee authority supporting proposition that prospective employers
invitation for applicant to attend pre-employment physical exam can,
standing alone, create putative or implied employment relationship for
purposes of workers compensation law. Hamilton v. Kenco Logistics
Services LLC, 3/8/16, Conner, 19 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1352&context=utk_workerscomp

COURT OF APPEALS
TORTS: When minor child was struck by van driven by employee of
childrens daycare, childs mother filed suit alleging negligence against
employee-driver and asserting claims for negligent hiring, negligent
retention, and negligence per se against drivers employers, trial court
erred in dismissing plaintiffs asserted claims of direct negligence against
defendant employers; preemption rule urged by defendant employers
that once employer has admitted vicarious liability for actions of its agent,
plaintiff may no longer proceed against employer on direct negligence
claim such as negligent entrustment or negligent hiring should not be
adopted in Tennessee; admission of vicarious liability does not insulate
employer from defending independent negligence claims. Jones v.
Windham, 3/11/16, Jackson, Goldin, dissent by Gibson, 21 pages.
http://www.tncourts.gov/sites/default/files/jonesmelanieopn.pdf
http://www.tncourts.gov/sites/default/files/jonesmelaniedis.pdf

EMPLOYMENT: In case in which Davis began working for Johnstone

Group Inc. (JGI), which provides real estate appraisal services, after Davis
became licensed Certified General Real Estate Appraiser in 11/05, he
signed, as condition of his continued employment with JGI, new
employment agreement which contained non-competition clause, in 4/15,
Davis submitted notice to JGI of his intent to resign his employment and
to go to work for Appraisal Services Group Inc. (ASG), JGI sent Davis
letter stating that should Davis actually begin working for ASG in any
capacity, such conduct would be direct violation of non-competition
clause in his employment agreement, and Davis filed complaint for
declaratory judgment, trial court properly found non-compete provision in
employment agreement unenforceable based on fact that extensive
training provided by JGI to Davis to help him become real estate appraiser
was not type of legitimate business interest worthy of protection by

covenant not to compete; because training Davis received with JGI is

generally same training he would have received in another other office in
his quest to become certified real estate appraiser, and because JGI did not
have exclusive customer list that Davis might reference in his work with
ASG, JGI failed to prove any facts that would warrant enforcement of
non-competition provision in employment agreement. Davis v. Johnstone
Group Inc., 3/9/16, Jackson, Goldin, 10 pages.
http://www.tncourts.gov/sites/default/files/davisjohnjasonopn.pdf

FAMILY LAW: Trial court erred in denying petition, filed by

Department of Childrens Services (DCS), to terminate fathers parental
rights to his three children when evidence clearly and convincingly shows
that father was guilty of pattern of criminal conduct exhibit[ing] a
wanton disregard of the child[ren] fathers criminal conduct has led to
number of incarcerations and deportations, during five years children have
been in DCS custody, outside of couple of phone conversations, father has
made no real attempt to maintain meaningful relationship with them, and
father must have known that his conduct could land him in jail or ensure
him one-way ticket back to Mexico. In re K.F.R.T., 3/10/16, Knoxville,
Susano, partial dissent by Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/in_re_karla_t.pdf

FAMILY LAW: In case in which father and stepmother (respondents)

filed petition for adoption and to terminate mothers parental rights to two
children based on grounds of abandonment due to mothers failure to visit
and failure to support, and trial court granted petition, entering final order
of adoption on 9/29/11, trial court erred in concluding that order
terminating mothers parental rights and permitting adoption of children
was not void for lack of personal jurisdiction due to ineffective service of
process upon mother; order of default judgment terminating mothers
parental rights was void for lack of personal jurisdiction when two
affidavits filed in support of motion for default judgment were facially
insufficient to satisfy statutory requirements because they do not contain
detailed description of any diligent inquiries or efforts made to locate
mother or her residence; case is remanded to trial court for hearing to
determine whether exceptional circumstances exist to justify denial of
relief to mother from void judgment when mother sought relief
approximately three years after entry of trial court order. In re Landon
T.G., 3/9/16, Knoxville, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/landonopn.pdf

FAMILY LAW: In case in which mother filed petition to modify

residential parenting schedule, and trial court found that material change
in circumstances had occurred, modified plan accordingly, and ordered
parties to attend parenting classes and mediation before seeking further
relief from court, evidence did not preponderate against trial courts
modifications to parenting plan trial court established residential
schedule that minimized potential for conflict in decision-making process,
established equal co-parenting time when possible and in best interest of
child, and provided guidance for likely changes in future; case is
remanded for entry of permanent parenting plan and child support
worksheet incorporating trial courts modifications; trial court erred by
ordering parties to attend parenting classes before seeking further relief
from court; while TCA 36-6-408(a) permits successive attendance in
parent educational seminars when numerous parenting plans are entered,
statute does not require such attendance before party may seek relief from
court, as such requirement hinders partys access to justice; trial court did
not err in ordering parties to submit to mediation, pursuant to TCA 36-6404(a)(4), before initiating court action. Hawk v. Hawk, 3/9/16,
Knoxville, McClarty, 18 pages.
http://www.tncourts.gov/sites/default/files/hawkopn_1.pdf

CIVIL PROCEDURE: When Savards were traveling in Florida, car

driven by Mr. Savard struck utility pole, injuring Mr. Savard and killing
Mrs. Savard, Mrs. Savards adult son (plaintiff) filed wrongful death suit
in Tennessee, Florida law, under which only personal representative of
decedent may bring suit, prevented plaintiff from pursuing his claim,
while Tennessee law permits heir to bring wrongful death suit in his or her
own name, and all interested parties were domiciled in Tennessee, trial
court erred in holding that Florida law applied and granting defendant,
executor of Mr. Savards estate Mr. Savard of natural causes two years
after accident summary judgment; plaintiff demonstrated that Tennessee
has more significant relationship to occurrence and parties, and hence,
presumption that law of place of injury must be applied was rebutted;
although Savards intended to stay in Florida for extended vacation, their
excursion in Florida still was temporary even through deliberate, and they
remained domiciled in Tennessee. Sterchi v. Savard, 3/11/16, Knoxville,
Swiney, concurrence by Frierson, 10 pages.
http://www.tncourts.gov/sites/default/files/sterchijrjropn.pdf
http://www.tncourts.gov/sites/default/files/sterchi_concurrence.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of first degree
premeditated murder, trial court did not abuse discretion in concluding
that evidence of defendants internet history day before murder,
defendant had conducted several internet searches for and visited
pornographic websites depicting women being raped was admissible
under TRE 404(b) when defendant was not on trial for sex crime, which
would have increased danger that jury may infer from a defendants use
of pornography that the defendant had the propensity to engage in other
morally questionable sexual behaviors, evidence that defendant planned
and carried out staging crime scene to make it appear that victim had been
raped in order to deflect suspicion from himself was highly probative of
defendants intent to kill victim, and negative results of victims rape kit,
placement of victims clothing, and lack of injuries to her torso or legs all
suggested that victim was not raped. State v. Giles, 3/10/16, Knoxville,
Thomas, 25 pages.
http://www.tncourts.gov/sites/default/files/gilesjohnopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted

of theft and being felon in possession of handgun, defendants behavior
warranted forfeiture of his right to counsel defendant was uncooperative
or refused to participate in multiple proceedings, he repeatedly demanded
that he be appointed new attorney or be allowed to represent himself,
defendants threatening and abusive behavior toward his attorneys and
their staff seemed to escalate with each new appointment of counsel,
defendant actually spit on his fourth attorney and threatened to physically
assault him on multiple occasions, and due to numerous delays caused by
defendant, case was not tried until three years after crime was committed;
even though forfeiture of counsel occurred prior to trial, defendants
behavior was sufficiently egregious to support a finding that he forfeited
his right to counsel, and in such situation, trial court had no other choice
than to conclude that defendant had forfeited his right to counsel. State v.
Carter, 3/8/16, Nashville, Wedemeyer, 42 pages.
http://www.tncourts.gov/sites/default/files/cartertimothyopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted

of conspiracy to sell and deliver more than 26 grams of cocaine within
1,000 feet of school, state was not required to elect specific acts and

offenses to support general charge of conspiracy given fact that even

though state alleged and proved multiple and discrete criminal acts
committed in furtherance of conspiracy, conspiracy is single offense,
and TCA 39-12-103(c) provides that although individual may conspire
to commit number of offenses, he or she is guilty of only one
conspiracy, so long as multiple offenses are object of same agreement or
continuous conspiratorial relationship. State v. Graham, 3/8/16,
Knoxville, Woodall, 34 pages.
http://www.tncourts.gov/sites/default/files/grahamgarrick.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMNAL PROCEDURE: In case in which defendant was convicted of
being felon in possession of firearm and distributing cocaine, district court
properly denied defendants motion to suppress evidence seized as result
of stop of defendants car when defendant failed to signal his left turn and
thus violated Nashvilles municipal code; district court reasonably
concluded that defendants turn could have affected other cars, which
means his failure to signal violated Tennessee law and gave officers
(second instance of) probable cause to stop him. United States v. Pittman,
3/11/16, Sutton, 11 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/16a0062p-06.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Testimony of person with direct
supervisory authority over employee, cook, that, within two or three
weeks of date of injury, employee told him that she injured her right foot
at work establishes employee gave notice within time period established
by TCA 50-6-201(a)(1); because medical records introduced at Expedited
Hearing do not contain expert medical opinion that employees broken
right foot is work related, employee is unlikely to prevail in establishing
work-relatedness of her alleged injury. Muffat v. Blue Chair Inc.,
10/7/15, Chattanooga, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1202&context=utk_workerscomp

WORKERS COMPENSATION: Medical evidence to date is limited

but, for standard required at expedited hearing, employee came forward
with sufficient information to demonstrate entitlement to orthopedic

evaluation of his left shoulder. Seabaugh v. Revel Logging, 10/9/15,

Jackson, Phillips, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1205&context=utk_workerscomp

REVENUE RULINGS
TAXATION: Application of Tennessee sales and use tax to remotely
accessed software. Department of Revenue Letter Ruling 15-08,
12/17/15, 16 pages.
http://www.tn.gov/assets/entities/revenue/attachments/15-08.pdf

TAXATION: Application of Tennessee sales and use tax to various

software applications. Department of Revenue Letter Ruling 15-09,
12/17/15, DR, 10 pages.
http://www.tn.gov/assets/entities/revenue/attachments/15-09.pdf

ATTORNEY GENERAL OPINION

GOVERNMENT: TCA 57-5-103(a), which as amended in 2015, prohibits
city or county from issuing permit for purchase of beer for resale to applicant
unless applicant has been citizen or lawful resident of United States for not
less than one year, would likely be found to violate both federal and state
constitutions. Attorney General Opinion 16-09, 3/4/16, 5 pages.
http://attorneygeneral.tn.gov/op/2016/op16-09.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