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TAM-BYTES

October 3, 2016
Vol. 19, No. 40
TAM Webinars
Determining Coverage in Tennessee Uninsured/Underinsured
Motorist Cases, 60-minute webinar presented by Melanie M. Stewart,
with Heaton & Moore in Memphis, on Tuesday, November 8, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Valuing Damages in Uninsured/Underinsured Motorist Cases in
Tennessee, 60-minute webinar presented by Ned Hildebrand, with
Heaton & Moore in Memphis, on Thursday, November 10, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Pretrial Prep: Know Your Court, Judge, Parties, and Case, 60minute webinar presented by Stephanie Balzli, with Shunnarah Injury
Lawyers in Birmingham, on Tuesday, November 15, at 10 a.m. (Central),
11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Auto Injury Litigation in Tennessee: Damages Considerations, 60minute audio conference presented by Steven G. Fuller, Nashville
attorney, on Thursday, November 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Events


Tennessee Workers Comp Conference
WHEN: November 9, 10, & 11 (this week)**
Wednesday afternoon, Thursday (all day), & Friday (morning),
WHERE: Franklin Embassy SuitesNashville South/Cool Springs
CLE: Earn up to 15 hours of CLE (14 GENERAL and 1 DUAL)

On Thursday, attendees may choose to attend a track designed for attorneys or one designed
for employers and others or you may mix the tracks to better serve your needs.

FACULTY: WORKERS COMP JUDGES: Judge Tim Conner; Judge Pamela


Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF WORKERS
COMPENSATION: Troy Haley; Brian Holmes; and Robert B. Snyder, M.D.
WORKERS COMP/EMPLOYMENT LAW ATTORNEYS: Mary Dee Allen, Wimberly
Lawson Wright Daves & Jones PLLC; Fred Baker, Wimberly Lawson Wright Daves &
Jones PLLC ; Leslie Bishop, Lewis, Thomason, King, Krieg, & Waldrop, P.C.; Kitty
Boyte, Constangy, Brooks, Smith & Prophete, LLP; Adrienne B. Fazio, Manier &
Herod; T. Joseph Lynch, III, Wimberly Lawson Wright Daves & Jones PLLC;
Marshall McClarnon, Ponce Law; Stacie D. Miller, Arnett, Draper & Hagood, LLP;
Jessica Housch Silinsky, Carr Allison; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. EMPLOYMENT LAW ATTORNEY: Greg Grisham, Ford &
Harrison LLP. OTHERS: Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine
and Rehabilitation, subspecialty Board Certification in Pain Medicine and Dawn
Trojan-Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Youll hear from Chief Judge Ken Switzer and Judge Pam Johnson,
with the Court of Workers Compensation Claims, as well as Judges Tim Conner and
Marshall Davidson of the Workers Compensation Appeals Board; youll gain insight on
causation issues under the new law from a panel of attorneys and physicians, hear about
when it is appropriate to terminate an employee who has filed a workers comp claim, and
receive a comparison of how workers comp injuries are resolved under the old (preJuly 1, 2014) versus the new (post-July 1, 2014) law; youll get an update on the latest
rulings from the Workers Compensation Appeals Panels, the Workers Compensation
Appeals Board, and the Court of Workers Compensation Claims; youll hear from Bureau
of Workers Compensation representatives on the employer penalty process, Drug
Formulary, pain management rules, and the ombudsman/mediation program; and youll
also get up to date on complex issues, such as Medicare set-asides, handling disputes over
an employees future medical benefits, new pain management rules, hot topics from the
plaintiffs perspective, and ethical issues arising under the new law.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/tn-workers-comp
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Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, November 17-18
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)

FACULTY: Judge Frank Clement, Court of Appeals, Middle Section; Judge Thomas R.
Frierson, II, Court of Appeals, Eastern Section; Judge W. Neil Thomas, III, Circuit Court,
Hamilton County; Chancellor Ellen Hobbs Lyle, Chancery Court, Davidson County;
Brandon Bass, Law Offices of John Day, PC; Harlan Dodson, Dodson, Parker, Behm &
Capparella, PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; John J. Hollins, Jr., Thompson Burton PLLC; Helen Rogers, Rogers, Kamm
& Shea; Kara E. Shea, Butler Snow LLP; Tom Shaw, Assistant General Counsel, Corrections
Corporation of America; W. Russell Taber, III, Riley Warnock & Jacobson, PLC; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC; Chris Vrettos, Gideon, Cooper & Essary
PLC; and Clifford Wilson, Howard Tate Sowell Wilson Leathers & Johnson, PLLC.

HIGHLIGHTS: Get an overview from Chancellor Ellen Hobbs Lyle about the practice and
procedures in the states new business court; get up to date on the latest developments in the
areas of personal injury, family law, and real estate; get practice pointers from Hamilton
County Circuit Judge Neil Thomas on oral and written skills to use in filing and presenting
various pretrial motions; learn the ins and outs of appellate practice and procedure and the
deferential abuse of discretion standard of review from Court of Appeals Judge Frank Clement;
get tips and strategies on advising your clients about the time overtime procedure, which is set
to take effect on December 1; learn how to use websites and social media to promote yourself
and your law practice; get an insiders perspective from the Chief Disciplinary Counsel on the
Boards recent developments; gain insight from Court of Appeals Judge Thomas Frierson on
accepting, terminating, or declining representation.

************************************************************

Family Law Conference for Tennessee Practitioners


WHEN: Thursday & Friday, December 1-2
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton PLLC, Memphis;
Judge Joe Binkley, circuit court, Davidson County; Judge Robert L. Childers, circuit
court, Shelby County; J. Todd Faulkner, Law Office of J. Todd Faulkner, Nashville;
Barry Gold, McWilliams & Gold, Chattanooga; James (Jimmy) D. Helton, II, Helton
Law Office, Brentwood; Candi Henry, Dodson Parker Behm & Capparella PC,
Nashville; Sean J. Martin, Martin Heller Potempa & Sheppard, Nashville; Judge Phillip
Robinson, circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Greg
Smith, Stites & Harbison PLLC, Nashville; Eileen Burkhalter Smith, Disciplinary
Counsel, Board of Professional Responsibility; and Judge Joseph Woodruff, circuit
court, 21st Judicial District (Hickman, Lewis, Perry, and Williamson counties).

HIGHLIGHTS: Protecting a clients separate assets; dividing marital property;


technology for the family law practitioner; retirement plans and QDROs; practical tips

from judges across the state; spousal/child support awarding, modifying, or


terminating; e-discovery and social media in divorce; child custody, visitation, and
relocation; contract law for family lawyers; civil and criminal contempt in family
matters; case law/legislative update; ethics and professionalism in family law practice;
and attorneys ethical use of social media.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/family-law-2016
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Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: Thursday & Friday, December 8-9
WHERE: Nashville Nashville School of Law
CLE: Earn up to 15 hours of CLE (12 GENERAL and 3 DUAL)
FACULTY: William (Will) Bell, Jr., Rainey, Kizer, Reviere & Bell PLC, Jackson;
Rebecca Blair, The Blair Law Firm, Brentwood; David Callahan, Goodman Callahan
& Blackstone, PLLC, Nashville; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Glen Kyle, Monica Franklin & Associates, LLC, Knoxville; Ralph Levy, Jr.,
Dickinson Wright PLLC, Nashville; Carla Lovell, Sherrard Roe Voight & Harbison,
PLC, Nashville; Hunter R. Mobley, Howard Mobley Hayes & Gontarek, PLLC,
Nashville; Jeff Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Julie
Travis Moss, The Blair Law Firm, Brentwood; Michelle Poss, Sobel, Poss & Moore,
Nashville; Timothy L. Takacs, CELA, Elder Law Practice of Timothy L. Takacs,
Hendersonville; and M. Matthew Thornton, Bourland, Heflin, Alvarez, Minor &
Matthews, PLC, Memphis.

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills
in 2016; trust drafting tips with samples; duties and liabilities of fiduciaries; structuring
marital agreements to deal with estate planning issues; what to look for in reviewing
existing estate plans; business succession planning; qualifying for TennCare;
alternatives to full probate administration; planning for a clients long-term care; tips for
probating a will and administering estates; planning for digital assets; probate litigation
case law and legislative update; ethical issues facing trust and estate planning attorneys;
and ethics in elder care.

For more information or to register call us at (800) 274-6774 or visit


www.mleesmith.com/probate

IN THIS WEEKS TAM-Bytes


Supreme Court abolishes strict party mutuality requirement for offensive
and defensive collateral estoppel and adopts sections 29 and 85 of
Restatement (Second) of Judgments as guidelines for courts to follow
when determining whether non-mutual collateral estoppel applies;
Workers Comp Appeals Board reverses trial courts ruling that
employee would likely prevail at trial in establishing that surgical
treatment for her nose was reasonably necessary as result of work injury;
Court of Appeals, in two healthcare liability actions, says good faith
certificate statute does not preclude plaintiff from taking voluntary
nonsuit after defendant files motion to dismiss based on missing or
deficient certificate of good faith;
Court of Appeals says TCA 20-12-119(c) permits recovery of costs
and reasonable attorney fees when one or more claims within lawsuit
are dismissed for failure to state claim for relief;
Court of Criminal Appeals reverses conviction for felony tampering
with evidence when charge was based on defendants brief placement
of bag of marijuana in his mouth, but defendants actions in no way
impaired availability of marijuana to be used as evidence; and
Court of Criminal Appeals says that there is no provision in
Tennessee law that allows trial court to restructure a sentence at a
probation revocation hearing and that trial court acted without
authority when it awarded defendant jail credit against his Tennessee
sentences for his incarceration in Missouri.

SUPREME COURT
CIVIL PROCEDURE: Strict party mutuality requirement for offensive and
defensive collateral estoppel is abolished; sections 29 and 85 of Restatement
(Second) of Judgments are adopted as guidelines for courts to follow when
determining whether non-mutual collateral estoppel applies; when
determining whether offensive collateral estoppel should apply in civil
action based on prior criminal judgment, Tennessee courts should be guided
by section 85 of Restatement (Second) of Judgments, which states that
judgment in favor of prosecuting authority is preclusive in favor of third
person in civil action against defendant in criminal prosecution. Bowen ex
rel. John Doe N. v. Arnold, 9/29/16, Nashville, Clark, unanimous, 18 pages.
http://www.tncourts.gov/sites/default/files/bowenms_revis.opn_.pdf

WORKERS COMP APPEALS BOARD


WORKERS COMPENSATION: When employee, having history of nose
surgeries, alleged that she suffered disfigurement to her nose when she was
struck in face by falling tray, employees claim was accepted as
compensable, but employees request for plastic surgery to repair her nasal
deformity was denied, evidence preponderated against trial courts
conclusion that employee would likely prevail at trial in establishing that
surgical treatment for her nose was reasonably necessary as result of work
injury; trial courts reliance on Wilkes v. Resource Authority, 932 SW2d 458
(Tenn. 1996), was misplaced when there was no evidence that employees
alleged deformity had effect on her ability to function in her daily life and
when statutory foundation for Wilkes was inapplicable given that Workers
Compensation Reform Act of 2013 does not include provision specifically
addressing benefits for disfigurement. Coolidge v. City Winery Nashville
LLC, 9/23/16, Hensley, 22 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1530&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1509&context=utk_workerscomp

WORKERS COMPENSATION: When employee, truck driver, alleged


injuries arising from motor vehicle accident that occurred after he suffered
syncopal episode of unknown cause while driving, trial court appropriately
ordered employer to initiate medical benefits; employer asserted that
employees accident was caused by idiopathic condition and that there was
insufficient evidence that his injuries arose primarily out of employment to
support trial courts order for medical benefits, but employees unrefuted
testimony was that particular hazard of employment, i.e., driving his
employers truck, caused or exacerbated his alleged injuries. Osborne v.
Beacon Transport LLC, 9/27/16, Conner, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1534&context=utk_workerscomp
http://trace.tennessee.edu/context/utk_workerscomp/article/1506/type/native/viewcontent

WORKERS COMPENSATION: Evidence did not preponderate against


trial courts conclusion that employees actions in failing to return to work
were reasonable, and award of temporary partial disability benefits is
affirmed, when employee provided testimony regarding why he felt he could
not perform jobs suggested, he described difficulties he would have
functioning in employers facility, including difficulties walking, climbing
stairs, and negotiating small bathroom stalls, and with regard to using
restroom while at work, employee testified concerning his ability to

maneuver in stall with injured leg and crutches, and his ability to sit and
stand without assistive devices. Dennis v. Polymer Components, 9/27/16,
Davidson, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1533&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1513&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff, pro se, filed complaint in healthcare liability action
without attaching certificate of good faith, several defendants filed motions
to dismiss based on missing certificate, plaintiff responded to motions and
filed notice of voluntary nonsuit, and some of defendants objected to
voluntary dismissal, trial court erred in dismissing plaintiffs claims against
objecting defendants with prejudice; because good faith certificate statute
does not expressly preclude plaintiff from taking voluntary nonsuit and, by
its terms, allows court discretion to excuse noncompliance under certain
circumstances, statute does not preclude plaintiff from taking voluntary
nonsuit; TRCP 41.01 preserves right of plaintiffs to obtain voluntary
dismissal without prejudice except in limited circumstances, none of which
are present in this case; because plaintiff met requirements of TRCP 41.01,
trial courts job was simply to enter order required by TRCP 41.01(3). Clark
v. Werther, 9/27/16, Nashville, McBrayer, 8 pages.
http://www.tncourts.gov/sites/default/files/clark.robert.v.werther.opn_.pdf

TORTS: When plaintiff filed healthcare liability suit and Certificate of good
faith, certificate of good faith disclosed zero prior violations of TCA 29-26122 but did not state whether plaintiffs counsel had consulted with expert
competent under TCA 29-26-115 to express opinions in case, defendants
filed motion to dismiss alleging that plaintiff had failed to comply with TCA
29-26-121(a)(4) by failing to file affidavit with regard to mailing of pre-suit
notice and that plaintiff also failed to comply with TCA 29-26-122 due to
allegedly deficient certificate of good faith, and plaintiff filed motion for and
notice of voluntary dismissal without prejudice pursuant to TRCP 41, trial
court did not err in allowing plaintiff to take voluntary dismissal; nothing in
TCA 29-26-122 prevented plaintiff from taking, and trial court from
granting, voluntary dismissal without prejudice pursuant to TRCP 41.01
while defendants motion to dismiss was pending. Hurley v. Pickens,
9/29/16, Knoxville, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/hurleydkopn.pdf

TORTS: In suit by two dentists (plaintiffs) against Metropolitan


Government of Nashville (Metro) under Governmental Tort Liability Act to
recover damages caused by sewer and stormwater system behind plaintiffs
office, evidence did not preponderate against trial courts findings that
stormwater ponding in alley became polluted with raw sewage and was
dangerous; discretionary function exception to immunity does not apply to
claims brought under TCA 29-20-204 (dangerous condition on public
improvement owned and controlled by governmental entity), and Metros
decision not to correct dangerous condition in combined line does not
qualify as discretionary decision; as to 4/09 event, Metro had duty to repair
known dangerous condition causing contaminated water to pool in plaintiffs
parking lot and enter his building, and by failing to take any action to
remedy flooding in plaintiffs parking lot after 6/07 event, Metro breached
its duty of care; plaintiffs claim for damages arising from 6/07 flood event
was barred by statute of limitation; Metro presented evidence that plaintiff
was negligent in constructing addition to his office Metro engineer
testified that building addition by plaintiff altered natural surface flow of
water and made ponding of stormwater in alley more severe which trial
court failed to consider; on remand, trial court is instructed to determine
whether plaintiff was negligent and to assess percentage of fault (if any)
attributable to Metro and plaintiff with respect to 4/09 and 7/09 flooding
events. Nickels v. Metropolitan Government of Nashville, 9/28/16,
Nashville, Bennett, 18 pages.
http://www.tncourts.gov/sites/default/files/nickelsw.opn_.pdf

COMMERCIAL LAW: In suit arising from sale of house by defendants to


plaintiff, trial court properly granted defendants summary judgment on
plaintiffs claim of breach of contract when plaintiff, who contended that
repairs to be done pursuant to contract were not done, agreed via Final
Inspection Form that any repairs or replacements had been made to her
satisfaction as plaintiff cannot use parol evidence to vary clear and
unambiguous written terms of contract; trial court properly granted
defendants summary judgment on plaintiffs claim for intentional
misrepresentation when contract stated that repairs had been made to
plaintiffs satisfaction and that plaintiff was accepting house in its present
condition, and hence, plaintiff cannot have reasonably relied upon any
representations made by defendants or realtor with regard to repairs.
Lapinsky v. Cook, 9/26/16, Knoxville, Swiney, 29 pages.
http://www.tncourts.gov/sites/default/files/lapinskykeopn.pdf

PROPERTY: In case in which plaintiffs filed suit to enjoin adjacent


property owner (defendant) from using plaintiffs driveway for ingress and
egress, trial court properly enjoined defendant from using driveway for
ingress and egress; evidence did not preponderate against trial courts
finding that defendant failed to establish that she would incur unreasonable
expenditure to create another means of ingress and egress to her property,
and hence, that easement was not necessity. Douglas v. Cornwell, 9/28/16,
Knoxville, Clement, 10 pages.
http://www.tncourts.gov/sites/default/files/douglasd_-_opn.pdf

FAMILY LAW: Evidence did not support termination of fathers parental


rights to his two sons on ground of persistence of conditions when father
was incarcerated at time of one childs original removal, and it is unclear
with respect to whether father was staying in mothers home when both boys
were removed for second time; evidence did not support termination of
fathers parental rights on ground of mental incompetence when issue is not
whether father has impaired cognitive functioning, but whether his
impairment adversely affects his ability to parent children outside of
potentially failing to stop children from standing on furniture or running
with sucker in their mouths, record sheds little light on whether fathers
mental impairments adversely affect his ability to parent, and while past
domestic violence is potential cause for concern, record does not adequately
connect fathers mental impairments with incidents that occurred in 2012
and earlier; trial courts order terminating fathers parental rights to his two
sons is reversed. In re Quadayvon H., 9/30/16, Knoxville, Gibson, 14 pages.
http://www.tncourts.gov/sites/default/files/quadayvonhopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts finding
that wife did not establish mental incapacity as defense to enforcement of
parties marital dissolution agreement (MDA), which wife signed during
parties divorce mediation, when husband testified that during mediation, wife
appeared alert, lucid, responsive, aware of what was going on, and able to
communicate very well, when wife was asked on cross-examination whether
she considered herself to be intelligent, she responded, as intelligent as you,
sir, and trial court noted its own observations of wife over course of several
hearings, stating that it found her lucid, intelligent, responsive, and that she
knew what she was doing, that she was working with her lawyer; evidence
did not preponderate against trial courts determination that terms of MDA
were equitable MDA was not illegible (as wife claimed), and it provided for
$550,091 in marital assets to husband and $507,983 to wife. Richards v.
Richards, 9/26/16, Knoxville, Susano, 15 pages.
http://www.tncourts.gov/sites/default/files/richards_v_richards.pdf

GOVERNMENT: In case in which Johnston filed petition requesting


declaratory judgment to clarify duty of Tennessee State Election
Commission (TSEC) to publish instructions applying restrictions of TCA 27-133(i) to election write-in candidates, chancery court lacked subject matter
jurisdiction to hear Johnstons petition; Johnston cannot proceed under
Uniform Administrative Procedures Act (UAPA) because UAPA expressly
excludes TSEC from declaratory judgment provisions; rule of sovereign
immunity bars Johnstons suit for declaratory judgment under Declaratory
Judgment Act. Johnston v. Tennessee State Election Commission, 9/27/16,
Nashville, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/johnstonj.opn__0.pdf

CIVIL PROCEDURE: When plaintiff surgeon filed suit against defendant


hospital alleging multiple causes of action, two of which were dismissed
upon hospitals motion for dismissal for failure to state claim for relief, trial
court did not err in granting defendants motion pursuant to TCA 20-12119(c) to recover costs and attorney fees related to dismissal of two claims;
plaintiff argued that entire action must be dismissed for failure to state claim
upon which relief can be granted before costs can be awarded under statute,
but TCA 20-12-119(c) is interpreted to permit recovery of costs and
reasonable attorney fees when one or more claims within lawsuit are
dismissed pursuant to TRCP 12.02(6). McCord v. HCA Health Services of
Tennessee Inc., 9/27/16, Nashville, Dinkins, 6 pages.
http://www.tncourts.gov/sites/default/files/mccord.david_.v.hca_.opn_.pdf

COURT OF CRIMINAL APPEALS


CRIMINAL LAW: In attempted murder case, trial judge did not abuse
discretion by instructing two witnesses to testify, and such instruction did
not violate witnesses Fifth Amendment rights when at no time during
proceedings did either witness invoke her right to remain silent, state made
clear that it had no intention of asking witnesses questions that might
incriminate them in future criminal proceedings, and neither witness
expressed their belief that their testimony might incriminate them they
merely said they were afraid to testify; witness has no right to refuse to
answer any and every question asked him or her in judicial proceeding, but
may only invoke Fifth Amendment with respect to matters that will
incriminate him or her. State v. Lagrone, 9/30/16, Knoxville, Wedemeyer,
http://www.tncourts.gov/sites/default/files/lagroneopn.pdf

CRIMINAL LAW: In case in which defendant was convicted of attempted


burglary, possession of burglary tools, and evading arrest while operating
motor vehicle, defendants evading arrest conviction is reversed, and case is
remanded for new trial on that charge when, given facts surrounding
defendants conviction, in particular proof regarding whether his flight was
by means of vehicle or on foot, jury instructions failed to fairly submit legal
issues and misled jury as to applicable law; defendants remaining two
convictions (for attempted burglary and possession of burglary tools) are
affirmed. State v. Mayo, 9/26/16, Nashville, Williams, 12 pages.
http://www.tncourts.gov/sites/default/files/mayoroydii.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of


rape of child, trial judge did not err by refusing to give defendant access to
victims statement, which victim made to investigator with Department of
Childrens Services (Powell), when Powells notes do not qualify as victims
statement under TRCrP 26.2 Powells notes included narrative of her
actions and quoted statements made by victim during victims interview with
Powell, but notes were not signed, approved, or adopted by victim, and there is
no indication that they were verbatim account of events given by victim to
Powell; while interviewers notes frequently will not qualify as interviewees
statement for purpose of impeaching interviewee, notes may be discoverable
under TRCrP 26.2 for purpose of impeaching interviewer. State v. Hernandez,
9/27/16, Knoxville, Ogle, partial dissent by Williams, 21 pages.
http://www.tncourts.gov/sites/default/files/hernandez_michael_opn.pdf

CRIMINAL LAW: In case in which defendant was convicted of three


counts of aggravated assault, trial judge erred by failing to merge all three
convictions into single conviction when three counts in indictment were
alternate theories of same one alleged crime, i.e., aggravated assault, and
although defendant was convicted under all three counts of indictment, he
can only be punished for one crime of aggravated assault; case is remanded
for entry of three new judgment forms reflecting merger of those offenses
into single conviction for aggravated assault. State v. Baxter, 9/30/16,
Nashville, Easter, 5 pages.
http://www.tncourts.gov/sites/default/files/baxterpaulbrentopn_0.pdf

CRIMINAL LAW: In case in which defendant was convicted of


introducing drugs into penal institution, after he was arrested for unrelated
offense and disburdened himself of small amount of marijuana in trap
room leading to county jail, because trial judge erred in denying defendant
his right to self-representation, defendants conviction is reversed; trial
court, when confronted with defendants timely and unequivocal request to

represent himself, erred in summarily denying request rather than


determining whether attempted waiver of right to counsel was knowing and
voluntary, and defendants subsequent request either to change attorneys or
represent himself did not cure this error; case is remanded to trial court for
determination of whether defendants waiver of right to counsel is knowing
and voluntary. State v. Alderson, 9/29/16, Nashville, Williams, 18 pages.
http://www.tncourts.gov/sites/default/files/aldersonmichael.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant with


felony tampering with evidence when charge was based on defendants brief
placement of bag of marijuana in his mouth, but defendants actions in no
way impaired availability of marijuana to be used as evidence bag of
marijuana was not altered or destroyed, and its discovery was delayed
minimally, if at all; defendants conviction for simple possession of
marijuana is affirmed. State v. Linsey, 9/27/16, Nashville, Dyer, 8 pages.
http://www.tncourts.gov/sites/default/files/linseyc_opinion.pdf

CRIMINAL SENTENCING: In case in which defendant, who was


superintendent of Tri-State Baptist Childrens Home (Home), was convicted
of failing to report suspected child sexual abuse of two children who resided
at Home, trial judge erred by denying defendants request for judicial
diversion when defendant had reported abuse previously, she cared for all
three of children (two victims and CR, 14-year-old alleged abuser) who
lived at Home, she investigated incident, she honestly believed that CR had
not sexually abused two victims, and there is no indication that defendant
failed to report allegation to protect either CR or Home. State v. Honeycutt,
9/29/16, Knoxville, Ogle, 8 pages.
http://www.tncourts.gov/sites/default/files/honeycutt_rosa_opn.pdf

CRIMINAL SENTENCING: There is no provision in Tennessee law that


allows trial court to restructure a sentence at a probation revocation
hearing when trial court determines that probation violation has occurred,
it can only cause execution of original judgment as it was originally entered;
trial courts statutory authority to award post-trial jail credits is limited to
allowing credit on sentence only when time served arose out of offense for
which defendant was convicted; in case in which defendant was incarcerated
in Missouri, serving prison sentence for crimes committed in that state,
because time served in Missouri did not arise out of defendants Dyer
County offenses, trial court acted without authority when it awarded
defendant jail credit against his Dyer County sentences for his incarceration
in Missouri. State v. Morgan, 9/29/16, Jackson, Holloway, 8 pages.
http://www.tncourts.gov/sites/default/files/morganlarenzojeromeopn.pdf

COURT OF WORKERS COMPENSATION CLAIMS


WORKERS COMPENSATION: When employee, route driver, was
advised by employers dispatcher that his name would be added to list of
drivers to be called on Sunday, 10/11/15, employer did not dispatch
employee on Sunday, employee believed that he would be dispatched
following morning at 8 a.m., employee slept in sleeper of his truck on FedEx
property, employee drove to truck stop to use restroom facilities, and while
driving in parking lot at truck stop searching for parking place, another truck
struck his truck with trailer, employees actions on 10/11/15 and 10/12/15
were unreasonable under circumstances and were not within course and
scope of his employment duties. Lee v. American Employer Group,
5/20/16, Memphis, Luttrell, 12 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1432&context=utk_workerscomp

WORKERS COMPENSATION: Although 5/19/15 MRI indicated L2-L3


disc protrusion with nerve root encroachment, medical records were silent
as to whether there was causal relationship between employees back
condition and his work injury on or about 12/9/14, but medical evidence
presented supports employees allegations that he experienced sudden onset
of low back pain while using cranking mechanism, which resulted in back
sprain or strain, and hence, employee came forward with sufficient evidence
from which to conclude that he is likely to prevail at hearing on merits on
issue of entitlement to panel of physicians; doctors opinion that
degenerative disc disease is rarely, if ever, work related because it is preexisting condition is based upon faulty premise because if injured worker
offers as evidence medical proof within reasonable degree of medical
certainty that aggravation of pre-existing condition arose primarily out of
and in course and scope of employment, injury may be compensable.
Murphy v. ADM Trucking Inc., 5/17/16, Chattanooga, Headrick, 16 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1429&context=utk_workerscomp

WORKERS COMPENSATION: When employee, shop manager, opened


hood to investigate leak, radiator hose shot liquid into his face, burning his
face and eyes, employee came forward with sufficient evidence from which
to conclude that he is likely to prevail at hearing on merits regarding
employers status as employer of five or more employees subject to
Workers Compensation Law; status of four employees was undisputed, and
payment-by-commission arrangement was agreement for the employer

to remunerate the employee for his services in behalf of the former, and
hence, fifth employee was employee under Workers Compensation Law.
Koshkebaghi v. Bell Auto Sales Inc., 5/24/16, Nashville, Switzer, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1434&context=utk_workerscomp

REVENUE RULING
TAXATION: Application of Tennessee sales and use tax to remotely accessed
software. Department of Revenue Letter Ruling 16-07, 9/8/16, 6 pages.
http://www.tn.gov/assets/entities/revenue/attachments/16-07.pdf

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