TAM-BYTES February 3, 2014 Vol. 17, No.

5
2014 TAM CLE CALENDAR

Onsite Events
7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

PROGRAM HIGHLIGHTS:
Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients

For more information or to register go to: www.mleesmith.com/tn-med-mal ******************************************************************* 2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE. 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

Audio Conferences
HIPAA: New Regulations, Its Implications, and Its Impact, 60-minute webinar presented by Elizabeth Warren, Nashville attorney with Bass, Berry & Sims, on Thursday, February 27, at 10 a.m. (Central), 11 a.m. (Eastern). Understanding the Basics of Tennessees DUI Laws: Information and Guidance for Tennessee Attorneys, 90-minute webinar presented by Rob McKinney, Nashville attorney with the Law Office of Rob McKinney, on Thursday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). Intentional Interference with Business Relationships in Tennessee: An Overview, Update, and Litigation Tips, 60-minute webinar presented by Thomas W. Shumate IV, Nashville attorney with the Kay, Griffin, Enkema & Colbert, P.L.L.C., on Thursday, March 6 at 2 p.m. (Central), 3 p.m. (Eastern).
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 plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action following nonsuit of first action, was entitled to 120-day extension in which to refile her complaint; Supreme Court holds ruling in Ward v. State, that trial courts have affirmative duty, before accepting guilty plea to crime carrying mandatory sentence of

community supervision for life, to inform defendant of consequence of lifetime supervision, does not require retroactive application so as to toll postconviction statute of limitation; Court of Appeals holds that plaintiffs noncompliance with TCA 29 -26-121 in his first suit prevented plaintiff from obtaining extra 120-day extension of statute of limitation, thereby precluding plaintiff from relying on saving statute to file second suit after nonsuit of untimely first suit; Court of Appeals holds that when alleged will is signed by three witnesses, although execution of will requires only two witnesses, proponent of will in will contest is required either to submit testimony of all living witnesses to alleged will or show that living witness whose testimony is not proffered is not to be found; Court of Appeals rules that local rule, with its apparent blanket requirement for filing of temporary parenting plan, conflicts with TCA 36-6-403 because it requires filing of written temporary parenting plan even if parties have agreed to temporary parenting plan; Court of Appeals says wifes decision to contribute portion of investment account funds to marriage, by routinely depositing money from investment accounts into parties joint account to cover couples tax liability, to pay off husbands student loans, and to purchase land for husbands business and inventory for his store, had no effect on funds that remained in investment accounts; Court of Appeals holds countys decision to require some employe es to contribute to their insurance premiums, while not requiring contribution from other employees, did not violate equal protection; Court of Criminal Appeals holds, in issue of first impression, that TCA 39-14139(d), which makes it unlawful for any person to possess recording that does not clearly and conspicuously disclose actual name and address of manufacturer, is not preempted by federal Copyright Act; Court of Criminal Appeals rejects argument that single drug transaction can establish probable cause in sense that any single drug transaction, no matter circumstances, can always provide probable cause to justify issuance of search warrant; and Court of Criminal Appeals reiterates fact that person suffers from certain mental deficiencies does not necessarily prevent that person from understanding and waiving constitutional rights.

SUPREME COURT TORTS: When plaintiff filed health care liability action against defendant, during pendency of suit, legislature enacted pre-suit notice and certificate of good faith requirements of TCA 29-26-121 and 29-26-122, plaintiff voluntarily dismissed

original action and then filed two successive suits second action that did not comply with pre-suit notice and certificate of good faith requirements, and third action that complied with these statutory requirements she moved to consolidate second and third actions, defendant moved to dismiss, trial court consolidated suits and denied motion to dismiss, defendant moved for permission to file interlocutory appeal, which trial court denied, Supreme Court granted defendants supplication for TRAP 10 extraordinary appeal, and, while appeal was pending, plaintiff voluntarily dismissed second action, plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to 120-day extension in which to refile her complaint pursuant to TCA 29-26-121(c). Cannon ex rel. Good v. Reddy, 1/29/14, Nashville, Holder, unanimous, 7 pages.
http://www.tncourts.gov/sites/default/files/cannonopn.pdf

CRIMINAL PROCEDURE: Retroactivity of new constitutional rule in postconviction proceedings should henceforth be determined using TCA 40-30-122; decision in Ward v. State, 315 SW3d 461 (Tenn. 2010) that trial courts have affirmative duty, before accepting guilty plea to crime carrying mandatory sentence of community supervision for life, to inform defendant of consequence of lifetime supervision does not require retroactive application under TCA 40-30-122, and hence, Ward does not toll post-conviction statute of limitation; petitioner did not qualify for due process tolling of post-conviction statute of limitation when nothing prevented him from filing post-conviction petition in intervening years between his discovery of undisclosed sentence and filing of post-conviction petition. Bush v. State, 1/28/14, Nashville, Koch, unanimous, 25 pages.
http://www.tncourts.gov/sites/default/files/bushdbopncorrected.pdf

COURT OF APPEALS TORTS: When plaintiff filed healthcare liability action on 12/10/10, plaintiff sent notice of suit to defendant by letter dated 9/20/10 accompanied by medical authorization form that was not HIPAA compliant and did not comply with TCA 2926-121, defendant filed motion to dismiss complaint or for summary judgment, plaintiff filed motion for voluntary nonsuit, which trial court granted on 8/9/11, and trial court filed second suit on 5/4/12, trial court properly ruled that second suit was barred by statute of limitation; in order for first complaint to have been timely filed, plaintiff must have complied with TCA 29-26-121 in order to receive additional 120-day extension of statute of limitation; because plaintiff failed to comply with TCA 29-26-121, plaintiff did not receive 120-day extension, and hence, first complaint was not timely filed; as plaintiffs first complaint was not timely filed, plaintiff may not rely upon TCA 28-1-105, saving statute, to save his cause of action. Byrge v. Parkwest Medical Center, 1/30/14, ES, Swiney, 10 pages.
http://www.tncourts.gov/sites/default/files/byrgebjopn.pdf

TORTS: Inmates claim against doctor sounded in medical malpractice, thereby requiring compliance with Tennessee Medical Malpractice Act, when inmate asserted that doctor knew seriousness of inmates right foot and ankle inju ry and declined, out of deliberate indifference to seriousness of inmates condition, to refer inmate to specialist or order physical therapy or other specialized care; trial court did not abuse discretion in finding no extraordinary cause to excuse inmate from compliance with pre-suit notice requirement of TCA 29-26-121 when inmate argued only that, as pro se complainant, his pleadings should be held to less stringent standard than pleadings drafted by attorneys; trial court did not abuse discretion in finding no good cause to have been shown for inmates failure to file certificate of good faith with complaint when inmate offered no explanation for his failure to file certificate of good faith other than his general assertion that trial court should have afforded leniency in his pleadings due to his pro se and incarcerated status. Mathes v. Lane, 1/30/14, ES, Frierson, 14 pages.
http://www.tncourts.gov/sites/default/files/mathes_opinion_final.pdf

TORTS: When employee of Metropolitan Government of Nashville (Metro) was walking across parking lot in Metros school bus depot when another employee (bus driver) drove school bus into employee, bus driver tested positive for marijuana and cocaine immediately after accident, employee and his wife filed suit against Metro under Governmental Tort Liability Act alleging that driver was negligent and that Metro was liable under doctrine of respondeat superior, Metro filed third party complaint against bus driver seeking to recover lost wages and medical expenses paid to employee, and trial court determined that statutory removal of Metros immunity for injuries caused by bus drivers negligence resulted in bus drivers immunity from liability, evidence did not preponderate against trial courts finding that bus driver acted negligently in operation of bus by failing to see employee; trial court found that evidence fell short of establishing that bus driver was more probably than not under influence of drugs at time of accident, and evidence did not support finding that her conduct was willful, reckless, or grossly negligent. Harp v. Metropolitan Government of Nashville, 1/22/14, MS, Bennett, 8 pages.
http://www.tncourts.gov/sites/default/files/harpd.opn_.pdf

PROPERTY: In boundary dispute between two property owners (Vincent and Johnston), trial court properly considered payment of real property taxes on disputed property by Vincent and her predecessor in title as one indicia of ownership of disputed property; evidence preponderated against trial court s finding of no adverse possession with regard to extent that Johnstons improvements of framed building and metal carport with base encroach upon disputed property; case is remanded for determination of portions of disputed property adversely encroached upon by Johnstons framed building and metal carport with base, as well as determination of whether Johnstons boat ramp

adversely encroaches upon disputed property and if so, by what measure of real property. Vincent v. Johnston, 1/24/14, ES, Frierson, 27 pages.
http://www.tncourts.gov/sites/default/files/vincent_opinion_final.pdf

ESTATES & TRUSTS: When alleged will was signed by three witnesses, even though execution of will requires only two witnesses, proponent of will in will contest was required either to submit testimony of all living witnesses to alleged will or show that living witness whose testimony was not proffered was not to be found; because trial court failed to make findings of fact and conclusions of law regarding availability of third witness, as required under TRCP 52.01, trial courts decision is vacated; on remand, trial court may, in its discretion, permit further evidence or reconsider its decision to admit document into probate as decedents last will and testament. In re Estate of Woolverton, 1/30/14, WS, Kirby, 9 pages.
http://www.tncourts.gov/sites/default/files/woolvertondropn.pdf

FAMILY LAW: In case in which parties divorce reached impasse when trial court refused to set hearing in matter until temporary parenting plan concerning parties child was entered pursuant to Rule 16 of Rules of Local Practice in Circuit and Chancery Courts for Sullivan County, local rule, with its apparent blanket requirement for filing of temporary parenting plan, conflicts with TCA 36-6-403 because it requires filing of written temporary parenting plan even though statute specifically states this is not required if parties agree to temporary parenting plan. Smalling v. Smalling, 1/24/14, ES, Swiney, 5 pages.
http://www.tncourts.gov/sites/default/files/smallingcvopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts determination that trust assets, which wife received from her grandparents, were wifes separate property when, throughout marriage, investment accounts were always titled solely in wifes name or name of trust, although husband participated in discussions regarding investment of trusts funds, account administrator and trust officer for accounts testified that he never acted on husbands investment advice, and if husband had unfettered access to investment accounts, he would have had no need to borrow $20,000 from his mother during marriage to purchase inventory for his antiques store; wifes decision to contribute portion of investment account funds to marriage, by routinely depositing money from investment accounts into parties joint account to cover couples tax liability, to pay off husbands student loans, and to purchase land for husbands business and inventory for his store, had no effect on funds that remained in investment accounts. Luttrell v. Luttrell, 1/28/14, WS, Farmer, 18 pages.
http://www.tncourts.gov/sites/default/files/luttrellwilliampaulopn.pdf

FAMILY LAW: Trial court erred in entering mutual order of protection when respondent never asked court for protective order; TCA 36-3-606(c) requires

protective order to include maximum statutory penalty for violating order. Long v. Brown, 1/28/14, ES, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/longalopn.pdf

GOVERNMENT: In suit by county employee (plaintiff) alleging that Benton Countys decision to require some employees to contribute to their insurance premiums, while not requiring contribution from others Courthouse, Library, and other Benton County employees were required to pay premium amounting to 18% of cost of their health insurance, while employees of Benton County Sheriffs Department, Highway Department and Board of Education were not required to contribute any amount to cost of their health insurance violates equal protection, trial court properly granted Benton County summary judgment; rational basis exists for legislation that results in disparate treatment when challenged legislation had legitimate purpose in that cap on countys contribution to employee insurance benefits was needed in order to remedy budget shortfall, rather than having to resort to raising taxes, and Benton County Commissions decision to cap contributions to employee benefits solved issue and effectively balanced budget. Beal v. Benton County, 1/27/14, WS, Stafford, 24 pages.
http://www.tncourts.gov/sites/default/files/bealbopn_0.pdf

CIVIL PROCEDURE: When plaintiff, attorney, filed pro se third party action two weeks before his death, defendants filed suggestion of death and, after no motion for substitution was filed within prescribed period, motion to dismiss was filed by defendants, decedents surviving spouse, who had practiced law with him, appeared by telephone and informed trial court that she was not party and was not representing decedent or his estate with respect to plaintiffs third party complaint, but, nevertheless, insisted that court should hear her argument as to why decedents action should not be dismissed, trial court dismissed action for failure to seek timely substitution of party and granted defendants motion for judgment on pleadings, and surviving spouse filed notice of appeal, defendants provided proper notice under TRCP 25.01 by mailing copy of suggestion of death to law firm address of decedent and his surviving spouse; surviving spouse did not have standing to file appeal because she was not party, did not represent decedent, and did not represent his estate, which had not been opened when trial court entered its final judgment. Dry v. Steele, 1/28/14, ES, Susano, 10 pages.
http://www.tncourts.gov/sites/default/files/drylropinion.pdf

COURT OF CRIMINAL APPEALS CRIMINAL LAW: Defendants conviction for abuse of adult is reversed when jury had choice of two theories one of which was impermissible upon which it could have based its guilty verdict for abuse of adult charge; because potential for non-

unanimous and possibly illegal verdict existed with regard to this count, defendants conviction is reversed, and case is remanded for further proceedings. State v. Jones, 1/29/14, Jackson, Page, 24 pages.
http://www.tncourts.gov/sites/default/files/jonestawanaopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of possession of 100 or more recordings that did not clearly and conspicuously disclose name and address of manufacturer in violation of TCA 39-14-139(d), trial judge properly refused to dismiss indictment against defendant based on lack of subject matter jurisdiction when Tennessee statute was not preempted by federal Copyright Act of 1976 because it contains extra element of consumer protection for Tennessee residents, which removes it from ambit of Copyright Act, and TCA 39-14-139 focuses on labeling and packaging rather than rights of copyright owner. State v. Pierson, 1/23/14, Jackson, McMullen, 15 pages.
http://www.tncourts.gov/sites/default/files/piersonroyopn.pdf

CRIMINAL PROCEDURE: In drug case, trial judge properly granted defendants motion to suppress evidence seized pursuant to search warrant when affidavit filed in support of search warrant lacked probable cause to justify search; in State v. Batts, 32 TAM 21-28 (Tenn.Cr.App. 2007), panel of this court incorrectly described relevant holdings of State v. Powell, 53 SW3d 258 (Tenn.Cr.App. 2000), and State v. Booker, 32 TAM 2-16 (Tenn.Cr.App. 2006), as there is no holding in either case which lends any authority to argument that single drug transaction can establish probable cause in sense that any single drug transaction, no matter circumstances, can always provide probable cause to justify issuance of search warrant; to extent that State v. Batts may imply that proposition, it is rejected and overruled. State v. Talley, 1/24/14, Nashville, Woodall, 10 pages.
http://www.tncourts.gov/sites/default/files/talleymichaelauthoropn.pdf

CRIMINAL PROCEDURE: Fact that person suffers from certain mental deficiencies does not necessarily prevent that person from understanding and waiving constitutional rights person with mental deficiency may waive his or her Miranda rights if that waiver was knowingly and voluntarily made; defendants mental retardation is but one of number of different factors to be considered in determination of whether waiver of Miranda rights was knowing and voluntary. State v. Lawrence, 1/24/14, Jackson, Woodall, 10 pages.
http://www.tncourts.gov/sites/default/files/lawrenceericaopn.pdf

CRIMINAL SENTENCING: Sentencing provisions of Drug-Free School Zone Act do not violate constitutional protections against cruel and unusual punishment. State v. Keys, 1/29/14, Nashville, Wedemeyer, 11 pages.
http://www.tncourts.gov/sites/default/files/keysbmopn.pdf

CRIMINAL SENTENCING: In reckless homicide case, trial judge abused discretion in denying defendant judicial diversion solely because death was involved; victims death is involved in every case of reckless homicide, but legislature has not excluded reckless homicide from offenses for which judicial diversion is sentencing option. State v. Turner, 1/29/14, Nashville, Wedemeyer, 12 pages.
http://www.tncourts.gov/sites/default/files/turnertlopn.pdf

CRIMINAL PROCEDURE: When petitioner, who was convicted of robbery with deadly weapon, second degree burglary, and aggravated rape in 1990 and received effective 25-year sentence, filed Motion for Post-Conviction DNA Testing of knife believed to have been brandished during crimes, post-conviction court erred in denying motion, and case is remanded for entry of order granting requested DNA analysis; only evidence before post-conviction court was witnesss expert opinion, based upon his review of case materials, that knife handle was still in sufficiently good condition to permit DNA analysis, and post-conviction court abused discretion by rejecting that evidence; post-conviction court should postulate whatever realistically possible test results would be most favorable to petitioner in determining whether he has established reasonable probability requirement; realistically possible DNA test results include possibility that testing will not only fail to identify petitioners DNA on item tested but will also simultaneously identify DNA profile of another known sex offender from Combined DNA Index System database; post-conviction court erred when it determined that, assuming DNA test results identified DNA of another known sex offender on knife handle and excluded his own, petitioner failed to establish reasonable possibility that he would not have been prosecuted or convicted. State v. Nelson, 1/27/14, Jackson, Williams, concurrence by Woodall, 12 pages.
http://www.tncourts.gov/sites/default/files/nelson_opn_final.pdf http://www.tncourts.gov/sites/default/files/nelsonrickyleecon.pdf

SIXTH CIRCUIT COURT OF APPEALS INSURANCE: There is no exception to Tennessees general prohibition against tort victim suing alleged tort-feasors insurer directly when putative tort-feasor enters bankruptcy proceedings while tort victims lawsuit against it is pending, thereby triggering automatic stay before tort victim obtains judgment; because there remains adequate remedy notwithstanding automatic stay to procure judgment against alleged tort-feasor who enters bankruptcy, there is no need to craft out of whole cloth Tennessee state law exception to well-established doctrine precluding direct action. Mauriello v. Great American E & S Insurance Co., 1/30/14, Griffin, 6 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0086n-06.pdf

REVENUE RULINGS TAXATION: Application of Tennessee business tax to management services or management consulting services. Department of Revenue Letter Ruling 13-16, 11/19/13, 8 pages.
http://www.tn.gov/revenue/rulings/misc/13-16ms.pdf

TAXATION: Exemption from Tennessee sales and use tax of equipment and materials for construction of facility on city-owned property in Tennessee. Department of Revenue Letter Ruling 13-17, 11/19/13, 5 pages.
http://www.tn.gov/revenue/rulings/sales/13-17.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