TAM-BYTES September 23, 2013 Vol. 16, No.

38
2013 TAM CLE CALENDAR

Audio Conferences
Oops, It Happened Again: Inadvertent Disclosure Under Federal Rule of Evidence 502, 60-minute audio conference presented by Wayne Morse, Birmingham attorney, on Thursday, October 10 at 10 a.m. (Central), 11 a.m. (Eastern). Fair Credit Reporting Act: Add a Revenue Stream to Your Firm and Make Happy Clients, 60-minute webinar presented by John Watts, Birmingham attorney, on Tuesday, October 15 at 10 a.m. (Central), 11 a.m. (Eastern). Taxes in Tennessee Divorce Cases: An Overview of Intermediate and Advanced Issues That Can Arise, 90-minute webinar presented by Rosemary Frank, Brentwood financial services professional, on Thursday, October 24 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: THIS WEEK!! Friday, October 4 in NASHVILLE at the Nashville School of Law *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: 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; Tony Saunders, Wyatt Tarrant & Combs; and 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 (Oct. 18): Judge Karen D. Webster, Shelby County Probate
Court; William (Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; Matt Rhoads, The Bailey Law Firm; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY (Oct. 25): 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 (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; 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

TENNESSEE WORKERS COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 at the Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers comp system; hear about issues arising with future medical benefits, causation, and pain management; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13

IN THIS WEEKS TAM-Bytes Supreme Court increases maximum compensation allowed for non-capital cases in which defendant is charged with first degree murder or with Class A or B felony; Court of Appeals affirms dismissal of suit against county under Governmental Tort Liability Act in suit by plaintiffs who were severely injured when top portion of tree collapsed, hitting their car while they were driving in Bradley County; In suit by couple after wife, who had undergone Essure Procedure, became pregnant and gave birth to child, Court of Appeals, in affirming trial courts grant of summary judgment to defendants, clinic and physician, based on statute of limitation, says couple were at least on inquiry notice of claim on day home pregnancy test showed positive result; In case in which wife in underlying Tennessee divorce action retained Washington D.C. attorney to advise her on business issues related to parties largest marital asset, international business, Court of Appeals rules fees were reasonable and necessary to attorneys representation of wife; Court of Criminal Appeals says that while TRCrP 24(b)(2), which provides for questioning of prospective juror out of presence of tentatively selected jurors and other prospective jurors, is addressed specifically to prospective jurors, it provides analogous support for trial court s conduct with regard to seated juror; and Sixth Circuit affirms dismissal of defamation claim against TripAdvisor LLC in suit by sole proprietor of hotel that was ranked number one on TripAdvisors 2011 Dirtiest Hotels list.

SUPREME COURT CRIMINAL PROCEDURE: Supreme Court Rule 13 is amended to increase maximum compensation for counsel providing indigent defense services to $2,500 from $1,500 in trial courts in which defendant is charged with first degree murder or Class A or B felony; maximum for providing indigent defense services is increased to $5,000 from $3,000 for cases in trial courts in which defendant is charged with first degree murder or Class A or B felony and AOC director or chief justice approves complex or extended claim. In re Amendments to Supreme Court Rule 13, Section 2(d) & (e), 9/19/13, Nashville, 8 pages.
https://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_13_section__2_-_effective_1-1-2014.pdf

COURT OF APPEALS TORTS: When 8-year-old girl was allegedly attacked by tenants Pit Bull dog while she was walking along sidewalk and her mother (plaintiff) filed suit against tenant and landowners, who lived in Oregon, trial court erred in granting landowners summary judgment; it appears that both landowners arguments regarding summary judgment and trial courts grant of summary judgment were based upon affidavit and deposition testimony of landowners and their agents that they lacked knowledge of existence of dog and/or of its vicious propensities, but under rigorous standard of Hannan v. Alltel Publishing Co., 270 SW3d 1 (Tenn. 2008), to obtain summary judgment, landowners must negate element of plaintiffs ne gligence claim or show that she cannot establish element of her claim; Hannan standard is not met by saying that plaintiff has not yet submitted evidence indicating landowners or their agents had knowledge of dog with vicious propensities; by merely pointing to lack of evidence proffered by plaintiff, landowners have not disproved essential factual claim made by plaintiff, and hence, they have not shifted burden to plaintiff. King v. Foht, 9/20/13, WS, Highers, 7 pages.
http://www.tncourts.gov/sites/default/files/kingeileenopn.pdf

TORTS: When plaintiffs were severely injured when top portion of tree collapsed, hitting their car while they were driving in Cleveland, Tenn., trial court properly granted Bradley Countys motion to dismiss plaintiffs suit under Governmental Tort Liability Act; with respect to removal of governmental immunity under TCA 29-20-205 for injuries caused by negligent acts or omissions of county employees, evidence did not preponderate against trial courts conclusion that county had not failed to maintain its roadways when county trimmed trees that posed obvious issues and responded to complaints concerning specific trees, brush, and bushes; to impose duty on county to inspect every tree that leaned over roadway would place insurmountable burden upon county and detract from its ability to maintain roadways; with respect to removal of governmental immunity under TCA 29-20-203(a), county did not have actual or constructive notice of trees condition when county did not have sufficient knowledge of facts that would have required it to investigate trees condition , and trees condition was not something that could have been discovered without extensive investigation. Graham v. Bradley County, 9/17/13, ES, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/graham2opn.pdf

TORTS: In case in which plaintiffs, married couple, decided they did not want any more children, they consulted with physicians at clinic, Essure sterilization procedure was performed on wife on 8/25/08, wife was told to use another form of birth control for three months, three months later, test confirmed that procedure was success, wife realized on 11/27/09 that her menstrual cycle was very late, home pregnancy test on

11/27/09, second home pregnancy test on 11/28/09, urine pregnancy test at clinic on 11/30/09, and ultrasound on 12/1/09 all indicated that wife was pregnant, wife gave birth to child on 7/21/10, couple served clinic and doctor (defendants) with notice of potential claim for medical negligence, and couple filed suit on 3/30/11, trial court properly granted defendants summary judgment based on statute of limitation; couple was on inquiry notice of wifes pregnancy no later than 11/27/09 , regardless of accuracy of home pregnancy test, regardless of whether couple subjectively believed that test results were inaccurate, and regardless of whether purpose of ultrasound test is to confirm results of other types of pregnancy tests. Speck v. Womans Clinic P.A., 9/18/13, WS, Kirby, 15 pages.
http://www.tncourts.gov/sites/default/files/speckjopn.pdf

FAMILY LAW: In case in which parties never married but had child together in 2011, trial court did not abuse discretion in designating mother as primary residential parent of parties child when mother had been childs primary caregiver from time of his birth, fathers involvement with child, although somewhat constrained by both mother and trial courts decisions with regard to supervised parenting time, has been limited, and for brief period of time in which mother and father lived together, mother took primary responsibility for caring for child. In re Connor S.L., 9/16/13, WS, Stafford, 17 pages.
http://www.tncourts.gov/sites/default/files/matterofconnersl2opn.pdf

FAMILY LAW: In case in which wife in underlying Tennessee divorce action retained appellant Washington D.C. attorney to advise her on business issues related to parties largest marital asset, international business, attorneys engagement agreement gave attorney lien against any proceeds collected by wife in divorce and also provided for monthly service charge on fee bills that were not paid when due, after divorce settled, wife refused to pay appellants outstanding fees, attorney filed motion in divorce action to recover fees under his attorneys lien, and wife objected to attorney fees as excessive, unnecessary, and unreasonable, trial judge properly found that fees were reasonable and necessary to attorneys repr esentation of wife and awarded appellant damages, service charge per engagement agreement, and prejudgment interest, but denied appellants request for costs of collection. Coleman v. Coleman, 9/19/13, WS, Kirby, dissent by Stafford, 46 pages.
http://www.tncourts.gov/sites/default/files/colemandlwopn.pdf http://www.tncourts.gov/sites/default/files/colemandvwdis.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In DUI case, trial judge properly denied defendants motion to suppress when officer had reasonable suspicion to stop defendant s vehicle

when officer observed defendants vehicle cross middle yellow line twice and white line on right once in violation of TCA 55-8-123(1) and saw defendant signal and slow for two turns without actually making turns, before completing third turn. State v. Black, 9/18/13, Jackson, Tipton, 4 pages.
http://www.tncourts.gov/sites/default/files/blackdawnalishopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of three counts of aggravated sexual battery, trial judge did not abuse discretion in questioning juror in chambers, with counsel and court reporter present, when state, at close of proof but before closing arguments, moved trial court to excuse one of jurors as alternate because juror was first cousin of one of defense attorneys, during questioning in chambers, juror acknowledged her relationship to defense counsel but stated that relationship would have no bearing on her ability to sit on case, adding I dont ever see him anyway, that she would decide case on proof, and that she was not even thinking of defense counsel, and trial court ruled that juror could remain on panel; while TRCrP 24(b)(2), which provides that [o]n motion of a party or its own initiative, the court may direct that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected jurors and other prospective jurors, is addressed specifically to prospective, rather than seated, jurors, it provides analogous support for trial court s conduct with regard to seated juror. State v. Allen, 9/18/13, Knoxville, Bivins, 20 pages.
http://www.tncourts.gov/sites/default/files/allendopn_0.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of four counts of felony murder and was given consecutive sentences of life in prison, postconviction court properly granted petitioner post-conviction relief when petitioner received ineffective assistance of counsel counsel was ineffective in failing to challenge states declaration that petitioner had materially breached immunity agreement, in failing to challenge states unilateral power to declare breach of immunity agreement, and in failing to challenge admissibility of defendants proffer statement, made during course of plea negotiations, pursuant to TRE 410. Housler v. State, 9/17/13, Nashville, Ogle, 57 pages.
http://www.tncourts.gov/sites/default/files/houslerdavidfinalopn.pdf

SIXTH CIRCUIT COURT OF APPEALS TORTS: In case in which plaintiff, sole proprietor of Grand Resort Hotel and Convention Center in Pigeon Forge, Tenn., filed suit against TripAdvisor LLC (defendant) after defendant ranked Grand Resort number one on its 2011 Dirtiest Hotels list, district court properly granted defendants motion to dismiss plaintiffs defamation claim because plaintiff failed to state plausible claim for defamation

because TripAdvisors placement of Grand Resort on 2011 Dirtiest Hotels list is not capable of being understood as defamatory; it is protected, non-actionable opinion; TripAdvisors use of word dirtiest constitutes loose, hyperbolic language, and general tenor of 2011 Dirtiest Hotels list makes clear that placement on list cannot reasonably be interpreted as stating actual facts about Grand Resort. Seaton v. TripAdvisor LLC, 8/28/13, Moore, 15 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0255p-06.pdf

INSURANCE: When Mosley owned M&W Tree Service, landscaping business in Mississippi, Mosley owned Mack truck with attached tree spade, Whitby, subcontractor of M&W Tree Service, was involved in accident with Ewan while driving Mack truck, and Ewans filed suit against Mosley and Whitby seeking damages allegedly suffered as result of accident, Whitby contended that Auto Policy was only applicable insurance policy, and Ewans discovered existence of commercial general liability (CGL) insurance policy, district court properly ruled that coverage was excluded by auto exclusion clause in CGL policy that excluded [b]odily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, auto or watercraft owned or operated by or rented or loaned to any insured; while CGL policy defined auto not to include mobile equipment, Mack truck with attached tree spade is auto and not mobile equipment. Hartford Casualty Insurance Co. v. Ewan, 8/28/13, 9 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0801n-06.pdf

CRIMINAL PROCEDURE: In case in which petitioner was convicted of second degree murder, appellate counsel was deficient for failing to argue on direct appeal that petitioners right to prompt probable cause determination was violated under County of Riverside v. McLaughlin, 500 US 44 (1991); it was unreasonable determination of fact to find that petitioner was in custody for less than 48 hours at time be began to confess, as petitioner was arrested when taken into custody by officers; there is reasonable probability that confession would have been suppressed if petitioners appellate counsel had raised McLaughlin issue in reasonably competent manner and persuaded court on direct appeal that petitioners pre -confession detention was longer than 48 hours; petition for writ of habeas corpus is granted unless respondent reopens petitioners appeal within 180 days to allow him to raise McLaughlin issue on direct appeal. Norris v. Lester, 8/26/13, Cole, 16 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0784n-06.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