TAM-BYTES August 12, 2013 Vol. 16, No.

32
2013 TAM CLE CALENDAR

Audio Conferences
Covenants Not to Compete: Overview and Drafting Tips for Tennessee Attorneys, 60-minute webinar presented by David Johnson, Nashville attorney, and Danny Van Horn, Memphis attorney, on Tuesday, August 27 at 2 p.m. (Central), 3 p.m. (Eastern). HIPAA and HITECH Act: The Impact of New Rules on Your Practice, 60minute webinar presented by Anne Sumpter Arney and Susan High-McAuley, Nashville attorneys, on Thursday, August 29 at 2 p.m. (Central), 3 p.m. (Eastern). From Smartphones to iPads: Legal Issues When Employees Bring Their Own Devices to Work, 60-minute webinar presented by James Crumlin, Nashville attorney, on Thursday, September 5 at 2 p.m. (Central), 3 p.m. (Eastern). The Smoking Guns of Social Media: How to Collect, Preserve, and Admit Social Media Evidence at Trial, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney, on Wednesday, September 11 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com

Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate

PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the states top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the states trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court;

William (Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: Donald Farinato, Holbrook Peterson Smith; Monica

Franklin, CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.

NASHVILLE FACULTY: Elaine Beeler, Clerk & Master, Chancery Court for 21st
Judicial District (Hickman, Lewis, Perry, and Williamson counties); Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate

LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on HOT topics impacting your practice, including: 2013 changes to the states trust laws; 2013 changes to the states conservatorship laws updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.

FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs
Lyle, Judge Tim Easter, attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference

IN THIS WEEKS TAM-Bytes Supreme Court adopts majority view holding that testimony of victim of statutory rape does not require corroboration; Supreme Court holds, in case in which defendant was convicted of false imprisonment and assault, because question of whether removal or confinement of victim with regard to false imprisonment was essentially incidental to accompanying offense of assault is one for jury to decide as matter of fact, and because proof could be interpreted in different ways, absence of instruction required by State v. White was not harmless error; Court of Appeals reverses trial courts decision designating mother as primary residential parent of parties 15-year-old son and ordering that son move from his residence with father in Nashville to mothers residence in Chattanooga when trial court erred in relying on testimony of sons high school counselor who testified via telephone, son wanted to remain in Nashville, and son had positive bond and relationship with father; and Court of Criminal Appeals reverses conviction for employing firearm during commission of dangerous felony when trial court did not instruct jury on

which dangerous felony offense was predicated and jury instructions failed to include statutory definition of dangerous felony, making it unclear whether jury relied upon attempted second degree murder conviction or another impermissible felony.

SUPREME COURT CRIMINAL LAW: Because victim of statutory rape cannot be charged with that offense, and thus does not qualify as accomplice under general accomplice rule, no corroboration of victims testimony is required in statutory rape case. State v. Collier, 8/12/13, Jackson, Wade, unanimous, 16 pages.
http://www.tncourts.gov/sites/default/files/collierdewayneopn_0.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of false imprisonment and assault, because question of whether removal or confinement of victim with regard to false imprisonment conviction was essentially incidental to accompanying offense of assault is one for jury to decide as matter of fact, and because proof could be interpreted in different ways, absence of instruction required by State v. White was not harmless error; statement in White was not intended to preclude consideration of newly required instruction in cases already in various stages of appellate process; defendants false imprisonment conviction is reversed, and case is remanded for new trial. State v. Cecil, 8/12/13, Nashville, Wade, unanimous, 17 pages.
http://www.tncourts.gov/sites/default/files/cecilterranceopn_1.pdf

PROFESSION OF LAW: Board of Professional Responsibility hearing panel appropriately weighed attorneys disciplinary history, which involved similar misconduct involving dishonesty, fraud, deceit, or misrepresentation and mishandling of property in which others claimed interest, heavily in aggravation against him in disciplinary proceeding, and although disciplinary counsel advocated for one-year suspension, hearing panel, after considering both aggravating and mitigating circumstances, imposed lesser nine-month suspension. Maddux v. Board of Professional Responsibility, 8/9/13, Knoxville, Clark, unanimous, 20 pages.
http://www.tncourts.gov/sites/default/files/madduxho_opn.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: In case in which employee was hospitalized with severe respiratory problems after spending about four days over course of two weeks power-washing roof of commercial building his employer owned,

based on employees response to steroid medication and fact that medical testing revealed no infection or other condition, treating physician opined that employee had developed interstitial lung disease from his exposure to combination of toxic substances while washing roof, and employers consulting physician opined that employee was not exposed to toxic substances in sufficient concentrations while washing roof to cause interstitial lung disease and that employees condition had been caused by infectious pneumonia, which was not detected by testing during employees hospitalization because testing was conducted too soon afte r infection developed, evidence did not preponderate against trial courts findi ng that employees lung injury was causally related to employment. Hall v. Nesco Inc., 7/7/13, Nashville, Anderson, 14 pages.
http://www.tncourts.gov/sites/default/files/hall_v_nesco_et_al_opn__jo.pdf

COURT OF APPEALS TORTS: In case involving incidents that occurred on 2/27/11 and 3/9/11 on campus of defendant Christian Brothers University (CBU), trial court properly granted defendant directed verdict on plaintiffs claim of defamation when evidence did not establish that statements made by campus security posed serious threat to plaintiffs reputation or suggest that statements opened him up to public contempt or ridicule; officers statements to person with whom plaintiff had no special relationship, without dissemination to any other person, do not satisfy publicity requirement necessary to sustain cause of action for false light invasion of privacy. Brown v. Christian Brothers University, 8/5/13, WS, Stafford, 23 pages.
http://www.tncourts.gov/sites/default/files/brownkopn_0.pdf

COMMERCIAL LAW: Tennessee Lemon Law applied to plaintiffs vehicle, Ford F-350 Super Duty Crew-Cab diesel truck, when vehicle fell below 10,001 pound threshold as term gross vehicle weight does not mean gross vehicle weight rating; vehicle was non-conforming under Tennessee Lemon Law due to pulling to right, uneven tire wear, and excess diesel exhaust fluid (DEF) depletion; non-conformities substantially impaired vehicle when plaintiff could not predict when DEF warning would appear and when such warning did appear, he could not depend upon mileage indicator to determine when DEF would be depleted. Beaver v. Ford Motor Co., 7/31/13, WS at Nashville, Highers, 14 pages.
http://www.tncourts.gov/sites/default/files/beaverr._opn.pdf

ESTATES & TRUSTS: When claimant filed claim against estate alleging that decedent, her husband, represented that if claimant would terminate her employment and be stay-at-home wife and travel with him that she would be well provided for and that decedent did not perform upon agreement to provide for

claimant, and estate filed untimely exception to claim, trial court erred in dismissing claim; claim was not void on its face, and estate was required to file exception to claim during statutory period and to challenge it based on terms of prenuptial agreement and alleged lack of written modification thereto; validity and applicability of prenuptial agreement was matter to be adjudicated within context of claim and timely filed exception thereto, and in absence of timely filed exception, claim must be considered just. Ethridge v. Estate of Ethridge, 8/6/13, WS at Nashville, Farmer, 6 pages.
http://www.tncourts.gov/sites/default/files/ethridgedorothyj_opn.pdf

FAMILY LAW: Evidence preponderated against trial courts decision to designate mother as primary residential parent of parties 15-year-old son mother was also designated as primary residential parent of parties 13 -year-old daughter and ordering that son move from his residence with father in Nashville to mothers residence in Chattanooga when trial court erred in relying on testimony of sons high school counselor (Wulff) because Wulff testified via telephone trial court lacked ability to view Wulff during her testimony, thus reducing its ability to weigh her credibility as witness son testified unequivocally that he wanted to remain in Nashville, and there was considerable evidence presented concerning sons positive bond and relationship with father; evidence preponderated against trial courts division of marital estate mother was awarded approximately 1,000% of actual marital estate (more than she requested), net worth of which was approximately only $25,000, while father was left with staggering debts and, although it is reasonable that wife receive greater share of marital estate, more equitable division of property is appropriate; trial courts property division is modified to award father two assets originally awarded to mother 401k ($71,756) and IRA ($106,548) which leaves mother with $85,244 in net assets, and father with negative $61,785, and although mother is still receiving over 300% of actual value of marital estate, this represents equitable division of property. Kelly v. Kelly, 8/6/13, ES, Swiney, partial dissent by Susano, 24 pages.
http://www.tncourts.gov/sites/default/files/kellytaopn.pdf http://www.tncourts.gov/sites/default/files/kellytadis.pdf

FAMILY LAW: Evidence that parenting plan providing for joint custody or joint primary residential placement is not working for parties is sufficient to support finding of material change of circumstances; evidence did not preponderate against trial courts determination that material change of circumstances had occurred warranting change in custody to mother from father when parties were unable to work together in joint custody and joint primary residential arrangement, mother was better equipped to provide child with continuity she needs, and mother appears more willing to encourage child to communicate with father while child is with mother and to keep father informed of childs acti vities in effort to keep

father involved with child as much as possible. Smart v. Smart, 7/31/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/smartsj_opn.pdf

GOVERNMENT: Evidence preponderated against trial courts determination that ground for removal of commissioner from utility district from office added to TCA 7-82-307(b)(2) failing to fulfill the commissioners or commissioners fiduciary responsibility in the operation or oversight of the district as amended effective 6/09, may be applied retrospectively to acts allegedly committed prior to effective date of amendment to utility district commissioners from office; notwithstanding public officials duty to adhere to his or her fiduciary responsibilities, retrospective application of 2009 amendment would attach new disability to past transactions when it removes elements of knowing and willfulness; term failing to fulfill the commissioners or commissioners fiduciary responsibility in the operation or oversight of the district in TCA 7-82-307(b)(2) is not unconstitutionally vague. Editors note: Original opinion, issued on 5/24/13, was withdrawn on 7/31/13 and replaced with this opinion, which added section addressing constitutionality of 6/09 amendment to TCA 7-82-307(b)(2). Commissioners of Powell-Clinch Utility District v. Utility Management Review Board, 7/31/13, WS at Nashville, Farmer, 16 pages.
http://www.tncourts.gov/sites/default/files/commissionersofpowell-clinchopn-1.pdf

GOVERNMENT: In case in which consulting group that served as agent of record for trust established to provide insurance to employees of county school system filed complaint alleging violation of Open Meetings Act (Act) when group of trustees met for lunch with one of consulting groups employees and later changed school systems agent of record when employee formed different association with another company, trial court correctly found that no violation of Act occurred at lunch meeting because no decision was made during lunch. Benefit Consulting Alliance LLC v. Clarksville Montgomery County School System, 8/5/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/benefitsconsultingalliance_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: In case in which defendant was convicted of two counts of premeditated first degree murder, two counts of felony murder, and two counts of especially aggravated burglary, because death of two victims was serious bodily injury upon which defendants especially aggravated burglary convictions are based, case is remanded to trial court for entry of judgment reflecting modified

conviction of aggravated burglary and for resentencing. State v. Brown, 8/7/13, Jackson, Smith, 18 pages.
http://www.tncourts.gov/sites/default/files/brownjacobopn_0.pdf

CRIMINAL LAW: In case in which defendant was convicted of criminally negligent homicide, reckless endangerment, attempted second degree murder, aggravated assault, employing firearm during commission of dangerous felony, and possession of handgun by convicted felon, because judgment of conviction was not stamp-filed by clerk, there is nothing in record to show that defendants motion for new trial was filed late only file-stamp or other similarly designated marking by trial court clerk can suffice to show what date judgment was filed; given fact that defendant was convicted as charged of attempted second degree murder in one count and lesser included offense of reckless homicide in other count, only dangerous felony for which defendant was convicted upon which his employment of firearm charge could be based is conviction for attempted second degree murder of Harris; because trial court did not instruct jury on which dangerous felony offense was predicated and because jury instructions failed to include statutory definition of dangerous felony, it is unclear whether jury relied upon attempted second degree murder conviction or another impermissible felony, and as such, defendants conviction for employing firearm during attempt to commit dangerous felony is reversed, and case is remanded for new trial. State v. Boyce, 8/6/13, Jackson, Woodall, partial dissent by Thomas, 23 pages.
http://www.tncourts.gov/sites/default/files/boycemartinopn.pdf http://www.tncourts.gov/sites/default/files/boycemartincon.pdf

CRIMINAL LAW: In case in which defendant was convicted of aggravated robbery and especially aggravated kidnapping, because evidence with regard to especially aggravated kidnapping was subject to different interpretations with respect to whether his removal or confinement of victim exceeded that necessary to accomplish accompanying felony of aggravated robbery, especially aggravated kidnapping conviction violated defendants due process rights, under holding in State v. White, and must be reversed; case is remanded to trial court for new trial on especially aggravated kidnapping conviction. State v. Benson, 8/2/13, Jackson, Smith, 19 pages.
http://www.tncourts.gov/sites/default/files/bensonaopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of two counts of sale of more than .5 gram of cocaine and one count of sale of less than .5 gram of cocaine, trial court erred in failing to inform defendant that he had constitutional right to be present and assist his counsel during jury selection, thereby preventing defendant from knowingly, intelligently, and voluntarily waiving that right; although defendant voluntarily requested to absent himself from courtroom, arguably constituting motion to excuse himself from courtroom as contemplated by TRCrP 43, trial court failed to ensure that defendant understood he had

constitutional right to be present during jury selection and that he was waiving that right by absenting himself from courtroom, and as such, defendants convictions are reversed, and case is remanded for new trial. State v. Vestal, 8/7/13, Knoxville, Wedemeyer, 9 pages.
http://www.tncourts.gov/sites/default/files/vestalmarkopn.pdf

SIXTH CIRCUIT COURT OF APPEALS CRIMINAL LAW: In case in which defendant was convicted of being felon in possession of firearm and ammunition, police officers testimony regarding anonymous 911 callers description of armed man fitting defendants exact characteristics was hearsay evidence admitted to prove that defendant possessed gun, and because testimony of five officers, which was based on anonymous, outof-court declarants observations, went directly to key issue for jury resolution , it was too prejudicial for harm to be cured with limiting instruction; district court s error in admitting hearsay evidence was not harmless because it is more probable than not that it had material impact on jurys verdict; to extent jury needed to hear about what prompted police action, less-detailed statement indicating that police received 911 call, without detailing callers description, would have avoided prejudice problem while still ensuring that jury was given minimal background information needed to understand why officers behaved as they did. United States v. Nelson, 8/7/13, Rogers, 9 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0210p-06.pdf

REVENUE RULING TAXATION: Application of TCA 67-6-205(c)(1) to hotel rooms continuously occupied for 90 days or more. Department of Revenue Letter Ruling 13-07, 6/28/13, 7 pages.
http://www.tn.gov/revenue/rulings/sales/13-07.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/