TAM-BYTES

April 28, 2014

Vol. 17, No. 17
2014 TAM CLE CALENDAR

Onsite Events
2014 Tennessee Attorney Technology Conference, to be held in
NASHVILLE this Friday, May 9.
*Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE

HEAR FROM A DISTINGUISHED FACULTY: Judge Thomas Brothers,
Davidson County Circuit Court; William Caldwell, Ortale, Kelley, Herbert & Crawford,
Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw,
Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Chattanooga

PROGRAM HIGHLIGHTS:

Most common cloud technologies serving lawyers
How to develop a mobile law practice
Effective use of technology in the courtroom
Mechanics of document production
Time and business management tips
Practical applications of e-discovery
Practical tips on how to request social media discovery
Jury selection and trial presentation tools
Protecting confidentiality of clients while going mobile
Social media and content marketing for lawyers
Technology and ethics in the practice of law

For more information or to register go to: www.mleesmith.com/tn-tech

Webinars
Disability Offsets: Traps for the Unwary Attorney and Tips for Avoiding
Them, 60-minute webinar presented by Grayson Smith Cannon, Goodlettsville
attorney, on Tuesday, May 13, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Transvaginal Mesh and Bladder Slings: Concerns and Legal Remedies, 60-
minute webinar presented by Leigh ODell, Montgomery attorney, on Thursday,
May 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Common Probate Problems Facing Tennessee Attorneys, 60-minute webinar
presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday,
June 11, 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

Supreme Court, in health care liability action, holds that statutory requirement of
affidavit of person who sent pre-suit notice by certified mail may be satisfied by
substantial compliance;
Supreme Court holds abuse of discretion standard accompanied by presumption of
reasonableness applies to all sentencing decisions, including grant or denial of
judicial diversion, when trial court properly supports its decision on record;
Court of Appeals holds that plaintiff in health care liability case who has filed
certificate of good faith that is not fully compliant with TCA 29-26-122 may seek
extension to file certificate fully compliant with statutory requirements and such
extension may be granted upon showing of good cause;
Court of Appeals says quo warranto action is not available to challenge de-
annexation;
Court of Criminal Appeals says mens rea element of TCA 39-17-417 does not
apply to quantity of controlled substance, as amount serves merely to delineate
punishment for violating TCA 39-17-417(a); and
Court of Criminal Appeals, in affirming grant of defendants motion to suppress,
rules that given fact defendant was merely parked in empty parking lot around 11
p.m., he was not breaking any traffic laws, and there had been no reports of person
in distress at location where defendant was parked, officer was not validly acting in
community caretaker role when he opened door to defendants vehicle.

SUPREME COURT

TORTS: Substantial compliance is sufficient to satisfy TCA 29-26-121(a)(3)(B) and
29-26-121(a)(4), which directs plaintiff in health care liability action to file with the
complaint affidavit of person who sent pre-suit notice by certified mail; plaintiff
substantially complied with statutory affidavit requirement when complaint included
paragraph stating that he had complied with statutory pre-suit notice requirement,
although complaint did not include exact date notice was sent, and while plaintiff
failed to file Exhibit A disc containing images of pre-suit notice sent to defendants,
certificate of mailing from U.S. Postal Service stamped with date of mailing, which
listed counsel for plaintiff as sender, and copies of certified mail return receipt with
signature of person who accepted service of pre-suit notice for defendants with
complaint, he filed it five days later, and plaintiff subsequently filed affidavit
verifying notice to healthcare providers and summarizing and duplicating
information already conveyed to defendants by contents of Exhibit A. Thurmond v.
Mid-Cumberland I nfectious Disease Consultants PLC, 4/24/14, Nashville, Clark,
unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/thurmondr_opncorr.pdf

CRIMINAL SENTENCING: When trial court places on record its considerations
for grant or denial of judicial diversion, determination should be given presumption of
reasonableness on appeal and reviewed for abuse of discretion; trial court must
consider and weigh factors set forth in State v. Parker, 932 SW2d 945 (Tenn.Cr.App.
1996), and State v. Electroplating Inc. 990 SW2d 211 (Tenn.Cr.App. 1998), prior to
granting or denying judicial diversion and must place justification for its
determination on record; in absence of appropriate considerations on record, appellate
court should either remand to trial court for reconsideration or perform de novo
review. State v. King, 4/23/14, Nashville, Wade, unanimous, 14 pages.
http://www.tncourts.gov/sites/default/files/kingkeopncorrected.pdf
http://www.tncourts.gov/sites/default/files/kingke_dis.pdf

GOVERNMENT: Petition to rehear filed by John Jay Hooker in case in which he
challenged constitutionality of states judicial selection process is denied. Hooker v.
Haslam, 4/23/14, Nashville, per curiam, 3 pages.
https://www.tncourts.gov/sites/default/files/docs/hooker_-_order_denying_rehear_4-23-2014.pdf


COURT OF APPEALS

TORTS: When plaintiff in health care liability case has failed to file any certificate of
good faith with complaint, only avenues of relief from mandate of dismissal are based
on the failure of the provider to timely provide copies of the claimants records or
extraordinary cause, but when issue is filing of certificate in compliance with this
section, plaintiff has additional avenue of relief showing good cause; plaintiff who
has filed certificate of good faith that is not fully compliant with TCA 29-26-122 may
seek extension to file certificate fully compliant with statutory requirements; when
plaintiffs proffered explanation for failure to affirmatively state number of her prior
violations of TCA 29-26-112 was that requirement to affirmatively state zero was
not settled law at time of filing complaint, causing confusion to both plaintiff and
defendants, trial court did not abuse discretion in finding good cause to support
motion for extension of case and allowing late-filing of fully compliant certificate of
good faith. Stovall v. UHS of Lakeside LLC, 4/22/14, WS, Stafford, 27 pages.
http://www.tncourts.gov/sites/default/files/stovallcopn.pdf

PROPERTY: In suit by three plaintiffs against their two brothers (defendants)
seeking to set aside deeds from their mother, evidence did not preponderate against
trial courts finding that plaintiffs failed to prove that confidential relationship existed
between mother and either of defendants; evidence, in fact, showed that mother was
competent to handle her own affairs and that she did so; evidence supported finding of
normal parent and adult child relationship between mother and each of defendants, but
such relationship does not give rise to presumption of dominion and control. Austin v.
Wilds, 4/22/14, ES, Swiney, 14 pages.
http://www.tncourts.gov/sites/default/files/austinkopn.pdf

PROPERTY: When plaintiff, assignee of note and deed of trust, filed detainer action
against mortgagors following foreclosure sale and mortgagors filed counterclaim
arguing that foreclosure sale should be rescinded because it did not comply with terms
contained in deed of trust, trial court erred in granting plaintiff summary judgment
when genuine issue of material fact remained, namely whether foreclosure sale was
actually held at the time and under the terms designated in the notice of sale and
when failure to conduct foreclosure sale at the time and under the terms designated in
the notice of sale would be violation of terms contained in deed of trust; no opinion
is expressed as to whether foreclosure sale was held at the time and under the terms
designated in the notice of sale. Wells Fargo Bank N.A. v. Lockett, 4/24/14, ES,
McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/lockettopn.pdf

PROPERTY: In action by decedents surviving spouse to set aside transfers by
decedent to his long-term companion (Fowler), evidence preponderated in favor of
trial courts award of $8,500 in insurance proceeds to surviving spouse for decedents
funeral costs when insurance proceeds were intended to cover funeral expenses and
when surviving spouse bore these costs; evidence preponderated against trial courts
award of $28,000 bank account to surviving spouse when totality of circumstances
decedent and surviving spouse separated about 1990, decedent began relationship with
Fowler in 1992 or 1993, and although they never lived together, decedent and Fowler
were involved until decedents death in 2010 indicating that decedents intent in
entering joint tenancy with Fowler on bank account was to ensure that Fowler was
provided for after his death. Simpson v. Fowler, 4/22/14, WS, Stafford, 18 pages.
http://www.tncourts.gov/sites/default/files/simpsonnoopn.pdf

PROPERTY: When owners sought to refinance property located in Williamson
County through Countrywide Home Loans, Inc. (Countrywide), loan was sought for
purpose of satisfying two prior mortgages on property held by SunTrust Bank and
Fifth Third Bank, deed of trust (DOT) and related loan documents were prepared by
Countrywide employees and information services company, individuals who prepared
DOT identified property as being located in Davidson County and included legal
description for different parcel of property borrower owned in Davidson County, DOT
was recorded in Davidson County, SunTrust and Fifth Third filed releases of their
mortgages on property with Williamson County Registers Office, Pinnacle Bank
obtained two judgments against borrower and filed judgments with Williamson
County Registers Office, Bank of New York Mellon (BNYM) acquired rights of
Countrywide pursuant to assignment, and BNYM filed suit seeking equitable
subrogation in effort to obtain priority creditor position, trial court properly granted
Pinnacle summary judgment; mistakes made could have been avoided with just little
effort if Countrywide had paid closer attention to recording of its DOT, and BNYM,
as successor-in-interest to DOT, should have been able to avoid having to seek
equitable subrogation if Countrywide had paid close attention to their registering of
DOT; BNYM did not acquire any greater interest than Countrywide had; Pinnacle
should not be penalized by having BNYM subrogated to its priority position as
creditor. Bank of New York Mellon v. Goodman, 4/16/14, MS, Cantrell, 16 pages.
http://www.tncourts.gov/sites/default/files/bankofnewyorkmopn.pdf

PROPERTY: In case in which subdivision homeowners association filed suit against
property owners (Pattons) seeking to enforce restrictive covenants, i.e., to enjoin use
of easement Pattons had granted to third party, and trial court granted each party
some of relief they requested, trial court erred in denying Pattons request for
attorney fees under provisions of restrictive covenant; in case in which several
subissues are raised, question of prevailing party is determined by outcome of
primary issue or primary relief requested, and while homeowners association and
Pattons may have asserted various legal bases in support of and against requested
injunction, those assertions were merely subissues to question of whether
homeowners association was entitled to enjoin use of easement; given fact that
Pattons ultimately prevailed on issue that led homeowners association to assert third
party claim to enforce covenants, Pattons are prevailing parties for purpose of any
award of attorney fees; lack of damages award does not preclude award of attorney
fees to prevailing party. RCK J oint Venture v. Garrison Cove Homeowners
Association, 4/22/14, MS, Cottrell, dissent by Dinkins, 13 pages.
http://www.tncourts.gov/sites/default/files/rckjointventure.opn_.pdf
http://www.tncourts.gov/sites/default/files/rckjointventure.opndissenting.pdf

PROPERTY: Although case law addressing subject of de-annexation is virtually
non-existent in Tennessee, there is no precedent holding that quo warranto is available
to challenge de-annexation TCA 6-51-103 expressly provides for quo warranto
action to be brought to oppose annexation by ordinance; TCA 6-51-201 provides for
only one method to review passage of de-annexation ordinance, i.e., referendum
election. Rich v. City of Chattanooga, 4/17/14, ES, Frierson, 22 pages.
http://www.tncourts.gov/sites/default/files/richopnfinal.pdf

DAMAGES: TCA 29-17-912 does not provide express authority to assess costs,
other than clerks bill of costs, against State of Tennessee in eminent domain actions.
State ex rel. Commissioner of Department of Transportation v. Richardson Lumber
Co., 4/16/14, MS, Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/richardsonlumberopn.pdf

FAMILY LAW: Evidence preponderated against termination of mothers parental
rights on ground of substantial non-compliance with requirements of permanency
plans when mother made substantial financial expenditures in attempt to comply with
numerous requirements of permanency plans, in spite of her limited financial
resources, and she made legitimate attempts to comply with each requirement of
permanency plans, and although she was not fully successful with regard to every
requirement, overall degree of her non-compliance was not substantial; Department
of Childrens Services (DCS) failed to present clear and convincing evidence that it
made reasonable efforts to assist mother and to reunify her with child basically,
DCS supervised mothers visits with child, provided her with transportation to single
visit, submitted necessary requests for funding for mothers parenting classes, alcohol,
and drug/mental health assessments, provided mother with names of providers for
domestic violence classes, and administered mothers drug screens and there was no
clear and convincing evidence that DCS exercised reasonable care and diligence to
provide services needed by mother in order to assist her with accomplishing
requirements of permanency plans; person cannot be said to have abandoned child
when his or her failure to support is due to circumstances outside his or her control;
although mother did not pay any child support for child during relevant four-month
period, DCS failed to prove that mother had capacity to support child and had no
justifiable excuse for not doing so it was not enough for DCS to simply prove that
mother was not disabled during relevant time frame. I n re J osephine E.M.C., 4/17/14,
WS at Knoxville, Highers, 26 pages.
http://www.tncourts.gov/sites/default/files/josephineemcopn.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Defendants 11 aggravated kidnapping convictions are reversed
when trial judge failed to instruct jury as provided by State v. White, 362 SW3d 559
(Tenn. 2012); although trial judge instructed jury in accordance with pattern jury
instruction in effect at time, it did not define the key element the substantial
interference with the victims liberty as requiring a finding by the jury that the
victims removal or confinement was not essentially incidental to the accompanying
felony offense; given fact that defendants confinement of six individuals occurred
during accompanying robbery, that confinement was limited to living room during
robbery, and that confinement ended as soon as defendant and his cohorts exercised
control of marijuana and money, whether defendants confinement of six individuals
was essentially incidental to accompanying aggravated robbery was subject to
different interpretations by jury and was not harmless beyond reasonable doubt;
defendants 11 aggravated kidnapping convictions are reversed, and case is remanded
for new trial on those charges. State v. Pryor, 4/17/14, Knoxville, Ogle, partial dissent
by Williams, 18 pages.
http://www.tncourts.gov/sites/default/files/pryortraveiopn.pdf
http://www.tncourts.gov/sites/default/files/pryordissent.pdf

CRIMINAL LAW: Defendants simple assault conviction is reversed when incorrect
mental state was included in jury charge trial judge incorrectly instructed jury that
they could convict defendant based upon mens rea of recklessness, which was
erroneous given fact that victim suffered no bodily injury during assault; both fear of
bodily injury and physical contact must be done intentionally or knowingly to
constitute assault, and recklessness is not sufficient; defendants conviction is
reversed, and case is remanded for new trial on charge of assault, to be accompanied
by proper instructions. State v. Adams, 4/22/14, Knoxville, Thomas, 11 pages.
http://www.tncourts.gov/sites/default/files/adamsdannyopn.pdf

CRIMINAL LAW: In case in which defendant was indicted for unlawful and
knowingly possession of substance containing marijuana with intent to sell 300
pounds or more and unlawful and knowing possession of substance containing
marijuana with intent to deliver 300 pounds or more in violation of TCA 39-17-417,
mens rea element of TCA 39-17-417 does not apply to quantity of controlled
substance, but rather applies only to manufacture, delivery, sale, or possession with
intent to manufacture, deliver, or sell controlled substance; in order to convict
defendant of violation of TCA 39-17-417, state must prove beyond reasonable doubt
actual weight of controlled substance and that defendant knowingly possessed
controlled substance and intended to manufacture, deliver, or sell controlled
substance, but there is no knowing element to prove as to amount of controlled
substance, as amount serves merely to delineate punishment for violating TCA 39-17-
417(a) and classifies offense as different grade of felony or misdemeanor based on
amount of controlled substance; defendant is in violation of TCA 39-17-417 if he or
she knowingly possesses controlled substance and intends to deliver it, regardless of
whether he or she had knowledge as to actual amount of controlled substance
amount of controlled substance is objective measure used to determine punishment
once subjective intent of defendant has been proven. State v. Reeves, 4/17/14,
Jackson, Williams, 15 pages.
http://www.tncourts.gov/sites/default/files/reevesaopn.pdf
CRIMINAL PROCEDURE: In case in which defendant was indicted on one count
of DUI and one count of violating open container law, trial judge properly granted
defendants motion to suppress evidence on basis that defendants warrantless seizure
was arbitrary and oppressive; given fact that defendant was merely parked in empty
parking lot around 11 p.m., defendant was not breaking any traffic laws, and there had
been no reports of person in distress at location where defendant was parked, officer
was not validly acting in community caretaker role when he opened door to
defendants vehicle; given fact that officer did not activate emergency equipment on
his police vehicle, had no reason to believe that defendant was committing crime, and
had no report from another individual that would justify welfare check on defendant,
officer was not acting in community caretaker role at time of defendants seizure.
State v. Shouse, 4/21/14, Nashville, Smith, Glenn concurred in results, 10 pages.
http://www.tncourts.gov/sites/default/files/shousejerryopn.pdf

CRIMINAL LAW: Trial court was ineffective in failing to file written motion for
instructions on lesser included offenses; trial courts failure to charge jury with lesser
included offense of aggravated kidnapping was not harmless error when although both
petitioner and his co-defendant had weapons, evidence and very nuanced differences
in elements of especially aggravated kidnapping and aggravated kidnaping present
reasonable doubt as to whether failure to charge lesser included offense affected
outcome of petitioners trial; this deficiency prejudiced petitioner because he would
have been successful in challenging trial courts refusal on appeal; new trial on
especially aggravated kidnapping convictions is warranted. Moore v. State, 4/22/14,
Jackson, Thomas, partial dissent by Page, 21 pages.
http://www.tncourts.gov/sites/default/files/moorerasheopn.pdf
http://www.tncourts.gov/sites/default/files/moorerashedis.pdf


PUBLIC CHAPTERS

COMMERCIAL LAW: Obligation of partnership incurred while partnership is
registered limited liability partnership, whether arising in contract, tort, or otherwise,
is solely obligation of partnership. 2014 PC 641, effective 7/1/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0641.pdf

ESTATES & TRUSTS: Requirements regarding state trust company governance and
operations. 2014 PC 642, effective 7/1/14, 7 pages.
http://www.tn.gov/sos/acts/108/pub/pc0642.pdf

GOVERNMENT: Governor may not make any decision obligating state with regard
to expansion of optional enrollment in Medicaid program, pursuant to Patient
Protection and Affordable Care Act, unless authorized by legislature. 2014 PC 662,
effective 4/14/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0662.pdf

GOVERNMENT: Religious Viewpoints Antidiscrimination Act prohibits local
education agency from discrimination against student based on religious viewpoint
expressed by student on otherwise permissible subject. 2014 PC 654, effective
4/10/14, 3 pages.
http://www.tn.gov/sos/acts/108/pub/pc0654.pdf

CRIMINAL LAW: Deletion of offense of person carrying knife with blade
exceeding four inches with intent to go armed. 2014 PC 647, effective 7/1/14, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0647.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