TAM-BYTES

J une 30, 2014

Vol. 17, No. 26
2014 TAM CLE CALENDAR

Webinars
The Attorneys Online Marketing Essentials: Using Websites and Social Media
to Promote Your Practice, 60-minute webinar presented by David Anthony,
Nashville attorney, on Thursday, July 10, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

2014 Tennessee Tort Law Update: Recent Appellate Court Decisions, 60-
minute webinar presented by Rebecca Blair, Brentwood attorney, on Wednesday,
July 16, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Paternity, Grandparent Visitation, and Other Disputes in Tennessee, 60-
minute webinar presented by Kevin Shepherd, Maryville attorney, on Thursday,
July 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Discovery Rules and Sanctions in Tennessee: What the Rules Really Mean for
Attorneys, 60-minute webinar presented by Candi Henry, Nashville attorney, on
Thursday, July 24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Social Media in the Courtroom: The Impact of Facebook and Twitter on Jury
Trials, 60-minute webinar presented by William L. Pfeifer, Jr., Alabama
appellate attorney, on Wednesday, August 6, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Piercing the Corporate Veil in Tennessee: What Your Business Clients MUST
Know, 60-minute webinar presented by Cole Dowsley, Franklin attorney, on
Thursday, August 14, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

Live Event

Personal I njury Law Conference for Tennessee Attorneys
Friday, September 26
Nashville School of Law

TOPICS: Get up to date on the hottest issues in Tennessee personal injury practice,
including the latest products liability developments, trial tips from a trial judge,
handling medical records and private information, limitations on the use of HIPAA
protected documents in litigation, Affordable Care Act concerns, auto insurance
policies, negotiating with insurance adjusters, caps on damages, Medicare set-asides,
and maintaining client confidentiality.

FACULTY: Davidson County Circuit Judge Joe Binkley, along with plaintiffs and
defense attorneys: Brandon Bass, J. Randolph Bibb, Rebecca Blair, Steven Fuller,
Bryan Moseley, David Randolph Smith, and Mathew Zenner.

*Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit


IN THIS WEEKS TAM-Bytes

In health care liability action, Court of Appeals holds plaintiffs mailing of pre-
suit notice through Federal Express Priority service was ineffective, and hence,
plaintiff was precluded from relying upon 120-day extension of statute of
limitation;
Court of Appeals says doctrine of constructive discharge is inapplicable to
proceedings under unemployment compensation statutes;
Court of Appeals reverses trial courts vacatur of arbitration award based on
evident partiality when one of arbitrators relationship with defendants expert
witness was nothing more than brief, casual, professional acquaintanceship that
occurred more than 20 years ago;
Court of Appeals addresses methodology by which multi-state taxpayers are to
compute their liability for franchise and excise taxes to Tennessee, and,
specifically, authority of Commissioner of Revenue to require taxpayers to use
apportionment methodology other than standard cost of performance
methodology found at TCA 67-4-2012 and 67-4-2110;
Court of Appeals affirms trial courts decision to order upward deviation to
fathers child support obligation for childs special education-care
counselor/provider expenses when annual expenses of $11,000 were reasonably
necessary to provide for child with severe autism and related conditions;
Court of Appeals affirms trial courts sanctioning of wife $100,000 under TRCP
37.02 for abuse of discovery;
Court of Criminal Appeals says TCA 39-13-203, which lists requirements
necessary to show intellectual disability rendering defendant ineligible for death
penalty, does not create independent, stand-alone cause of action allowing
defendant to challenge his or her eligibility for death penalty; and
Board of Professional Responsibility says that while attorney-client privilege
may be applicable to protect communications between testator and his or her
lawyer regarding estate planning or resulting documents from disclosure during
lifetime and after death of testator, exception to privilege may apply to permit
lawyer to make such disclosure to establish testamentary intent of testator.


COURT OF APPEALS

TORTS: In health care liability action against doctor who treated decedent prior to
her death and hospital where treatment occurred, trial court erred in requiring strict
compliance regarding content of pre-suit notice; plaintiff substantially complied with
content requirements for pre-suit notice when only failings were omission of
plaintiffs own address in notice letter and omission of hospitals address on provider
list; pre-suit notice may effectively be served in one of two ways personal delivery
or by mail; plaintiffs mailing through Federal Express Priority service was improper
and ineffective, and hence, plaintiff is precluded from relying upon 120-day
extension of statute of limitation provided by TCA 29-26-121(c); complaint filed
more than one year after decedents death was untimely. Arden v. Kozawa, 6/18/14,
ES, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/ardenopnfinal.pdf

EMPLOYMENT: In case in which Appeals Tribunal held that claimant for
unemployment compensation was constructively discharged after employer told
claimant that she was suspended pending investigation of book keeping
discrepancies and asked her to return her store keys, doctrine of constructive
discharge is inapplicable in administrative unemployment compensation proceeding;
use of term constructive discharge in unemployment compensation administrative
proceeding muddies analysis and should be avoided; facts do not support holding that
employers actions amounted to anything other than suspension of claimants
employment; to affirm holding that employers actions constituted termination of
claimants employment would be in effect to remove suspension of employment from
arsenal of tools available to employers; facts support holding that claimant
voluntarily ended her employment, and hence, holding that claimant is eligible for
unemployment compensation benefits is not supported by substantial and material
evidence and is arbitrary and capricious. Practical Ventures LLC v. Neeley, 6/19/14,
WS, Kirby, 18 pages.
http://www.tncourts.gov/sites/default/files/practicalventuresopn.pdf

COMMERCIAL LAW: Trial court erred in vacating arbitration award in favor of
Morgan Keegan & Company, Inc. on ground of evidence partiality under Federal
Arbitration Act and Tennessee Uniform Arbitration Act when relationship between
one of arbitrators and Morgan Keegans expert witness was nothing more than brief,
casual, professional acquaintanceship that occurred more than 20 years ago; small
talk not related to matter and exchange of pleasantries among panel members and
arbitration participants during breaks in proceedings do not indicate bias or evident
partiality; no improper ex parte communication took place; there was no evidence
that non-public arbitrator had financial interest in outcome of proceedings, either
direct or indirect. Morgan Keegan & Co. v. Starnes, 6/20/14, WS, Farmer, 15 pages.
http://www.tncourts.gov/sites/default/files/starnesmichaelopn.pdf

TAXATION: In case in which plaintiffs, taxpayers that provide wireless
communication and data services within and without Tennessee, contended they were
entitled to apportion their receipts (income) based upon Tennessees standard
apportionment formulas which require taxpayer to source their receipts for
telecommunications services based upon cost of performance methodology stated
in franchise and excise tax statutes because majority of their earnings producing
activities occurred in state other than Tennessee, Commissioner of Revenue was
empowered to issue variance from statutorily mandated Tennessee franchise and
excise tax liability apportionment methodology Commissioner, acting pursuant to
TCA 67-4-2014(a), varied standard formula requiring plaintiffs to include as
Tennessee sales its receipts from service provided to customers with Tennessee
billing addresses, even though none of plaintiffs receipts from their
telecommunications services, not even those attributable to customers with Tennessee
billing addressed, can be sourced to Tennessee; Commissioners authority to issue
variance applies when statutory formula does not fairly represent the extent of the
taxpayers business activity in this state, variance can apply where state is entitled to
receive more taxes as well as situation where taxpayer is entitled to pay less taxes.
Vodafone Americas Holdings I nc. & Subsidiaries v. Roberts, 6/23/14, MS, Bennett,
dissent by Clement, 37 pages.
http://www.tncourts.gov/sites/default/files/vodafoneopn.pdf
http://www.tncourts.gov/sites/default/files/vodafonedissent.opn_.pdf

FAMILY LAW: Trial court did not abuse discretion in ordering upward deviation to
fathers child support obligation for childs special education/care
counselor/provider expenses for special summer camp child attended and various
therapists mother hired to assist child when annual expenses of $11,000 were
reasonably necessary to provide for child with severe autism and related conditions
that he suffers from, and childs particular needs were well known to father.
Touchton v. Touchton, 6/24/14, MS, Dinkins, 12 pages.
http://www.tncourts.gov/sites/default/files/touchtonkaren.opn_.pdf

FAMILY LAW: Trial court did not abuse discretion in sanctioning wife $100,000
under TRCP 37.02 for abuse of discovery when wife engaged in plethora of
intentional or unintentional delay tactics by asking for at least five continuances of
trial, she was represented by seven successive attorneys in trial court who served four
sets of interrogatories, five sets of requests for production, and amended set of
interrogatories and requests for production, with latter being quashed and fifth
request for production held in abeyance after husband filed motion for protective
order, wife filed no less than five motions to compel, eight motions for either civil
contempt or sanctions and one motion to reconsider sanctions, all of which were
denied, and husband incurred in excess of $300,000 in attorney fees during almost
five years matter was litigated; economically disadvantaged spouse is not insulated
from monetary sanctions when he or she engaged in culpable conduct such as abuse
of discovery process. Berg v. Berg, 6/25/14, MS, Clement, 31 pages.
http://www.tncourts.gov/sites/default/files/bergl.opn_.pdf


COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of conspiracy to commit first
degree murder in connection with plot to murder defendants wife, trial judge did not
abuse discretion in admitting text messages exchanged between defendant and co-
defendant when text messages provided background of romantic relationship between
defendant and co-defendant, which was indicative of motive to kill defendants wife,
and text messages about defendant wanting to kill his wife, about couples marital
troubles, and about defendants efforts to procure money to pay for weapon or to pay
another person to do killing is evidence that defendant had intent to carry out murder.
State v. Dunkley, 6/25/14, Nashville, Wedemeyer, 33 pages.
http://www.tncourts.gov/sites/default/files/dunkleymilleropn.pdf

CRIMINAL LAW: In case in which defendant was convicted of vehicular homicide
by reckless conduct and five counts of reckless endangerment with deadly weapon,
there was sufficient evidence presented at trial from which rational jury could have
rejected defendants defense of sudden emergency and found his actions to be
reckless beyond reasonable doubt when defendant was attempting to pass Underhill
vehicle on hill, after dark, in no-passing zone, no-passing zone, as indicated by
double yellow line that is solid for particular lane of travel, indicates that passing in
that area, for vehicles traveling in that direction, poses substantial risk to safety of
others, especially those traveling in opposite direction, and that risk is only
heightened when road is going up blind hill, when there is no chance to see any on-
coming traffic until it is too late, and from evidence presented at trial, rational jury
could have found that defendant consciously disregarded that risk when he chose to
pass Underhill vehicle by crossing double yellow line into on-coming lane of traffic;
from references throughout trial to passing, as opposed to swerving or evading,
reasonable jury could have seen defendants actions as conscious decision to avoid
getting stuck behind slower moving vehicle, rather than instantaneous response to
another vehicle pulling out suddenly and dangerously close to him. State v. Krasovic,
6/26/14, Nashville, Smith, 10 pages.
http://www.tncourts.gov/sites/default/files/krasovickenneth.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of five
counts of theft in connection with theft of four laptop computers and Garmin
navigational device, state did not breach its duty to preserve evidence, i.e., two of
four computers, when, although comparable evidence may not have been available,
proof of another persons fingerprints and/or lack of defendants fingerprints on two
computers would not necessarily be exculpatory; because state failed to establish
value of stolen items in remaining counts, case is remanded to trial court for
amendment of judgments of conviction in Counts 1 and 4 to theft less than $500 and
for amendment of judgments of conviction in Counts 2 and 3 to attempted theft less
than $500. State v. Felts, 6/25/14, Nashville, Ogle, 14 pages.
http://www.tncourts.gov/sites/default/files/feltsjoshuaopn.pdf

CRIMINAL SENTENCING: TCA 39-13-203, which lists requirements necessary
to show intellectual disability rendering defendant ineligible for death penalty, lists
requirements of intellectual disability, burden of proof, and procedure when issue is
raised at trial, but plain language of statute does not create independent, stand-alone
cause of action allowing defendant to challenge his or her eligibility for death
penalty; had General Assembly intended to create separate and independent cause of
action in which to allege intellectual disability, they would have so stated in statute.
Suttles v. State, 6/25/14, Knoxville, Glenn, 25 pages.
http://www.tncourts.gov/sites/default/files/suttlesdennisopn.pdf


PUBLIC CHAPTERS

ESTATES & TRUSTS: Technical changes to laws governing probate and trust
matters; extension of small estate provisions to estates where property value does
not exceed $50,000. 2014 PC 829, effective 4/28/14, 5 pages.
http://www.tn.gov/sos/acts/108/pub/pc0829.pdf

CRIMINAL PROCEDURE: Removal of statutes of limitations for offenses of
aggravated rape, rape, rape of child, and aggravated rape of child. 2014 PC 836,
effective 4/28/14, 4 pages.
http://www.tn.gov/sos/acts/108/pub/pc0836.pdf


SIXTH CIRCUIT COURT OF APPEALS

TORTS: In suit by high school teacher/member of Cincinnati BenGals, cheerleading
squad for Cincinnati Bengals professional football team, who was subject of several
posts anonymously uploaded to www.TheDirty.com, popular website operated by
Nik Richie and DIRTY WORLD, LLC, and of remarks Richie posted on site, district
court erred in denying Dirty Worlds and Richies motion for judgment as matter of
law; material contribution test is adopted to determine whether website operator is
responsible in whole or in part, for creation or development of allegedly tortious
information under Communications Decency Act (CDA), 47 USC 230, which
immunizes providers of interactive computer services against liability arising from
content created by third parties; because Dirty World and Richie did not materially
contribute to illegality of statements Dirty World and Richie did not author
statements at issue although they did select statements for publication CDA bars
plaintiffs claims. J ones v. Dirty World Entertainment Recordings LLC, 6/16/14,
Gibbons, 25 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0125p-06.pdf

TORTS: In case in which plaintiff slipped and fell while shopping at Target store,
district court abused discretion in determining that unidentified womans statement
Hey, I told them about that water on the floor was inadmissible for lack of
personal knowledge; because unidentified womans statement creates factual issue as
to Targets notice of water on floor, district courts order granting Target summary
judgment is reversed. Silas v. Target Corp., 6/17/14, per curiam, 4 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0441n-06.pdf

EMPLOYMENT: In case in which plaintiff filed wrongful termination claim under
Tennessee common law after employer fired her after learning that her work history
was not what she claimed it was, district court properly granted defendant summary
judgment; defendant had many legitimate reasons for firing plaintiff separate and
apart from filing of her workers compensation claim; plaintiff did not produce any
direct evidence of pretext and cannot show temporal proximity between injury
claimed to be covered by workers compensation and her notification of discharge.
Banks v. Argos Risk Management Services LLC, 6/13/14, Sutton, 6 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0433n-06.pdf


FORMAL ETHICS OPINION

PROFESSION OF LAW: While attorney-client privilege may be applicable to
protect communications between testator and his or her lawyer regarding estate
planning or resulting documents from disclosure during lifetime and after death of
testator, exception to privilege may apply to permit lawyer to make such disclosures
to establish testamentary intent of testator; generally, lawyer may not provide any
information or document relating to representation of client except with informed
consent of current or former client when disclosure was impliedly authorized,
disclosure was required by order of court specifically granting authority for such
disclosure, disclosure is required by other law, and information was generally known
or otherwise permitted or required by rules. Formal Ethics Opinion 2014-F-158,
6/13/14, 11 pages.
http://www.tba.org/sites/default/files/ethics_f-158_062414.pdf


REVENUE RULINGS

TAXATION: Calculation of net earnings or loss for Tennessee excise tax purposes
by federally disregarded subsidiaries of real estate investment trusts. Department of
Revenue Ruling 13-22, 12/4/13, 5 pages.
http://www.tn.gov/revenue/rulings/fae/13-22fe.pdf

TAXATION: Computation of net earnings for Tennessee excise tax purposes by
taxpayers who have made election under IRC 338(h)(10). Department of Revenue
Letter Ruling 14-01, 3/18/14, 6 pages.
http://www.tn.gov/revenue/rulings/fae/14-01fe.pdf


ATTORNEY GENERAL OPINION

GOVERNMENT: 2014 PC 1015, which requires liquor-by-drink licensees to make
payment to wholesalers upon delivery of product, thereby allowing wholesalers to
sell to package retail licensee on 10 days credit, while liquor-by-drink licensees and
retail food store wine licensees are required to provide payment upon delivery, does
not run afoul of equal protection principles. Attorney General Opinion 14-61,
6/17/14, 4 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-61.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