TAM-BYTES

February 2, 2015
Vol. 18, No. 5
2015 TAM CLE CALENDAR

Webinars
The Tennessee Attorneys Trust Account Handbook: Ethical Considerations
and Key Provisions, 60-minute webinar presented by Sandy Garrett, chief
disciplinary counsel with the Board of Professional Responsibility, on Tuesday,
February 24, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of DUAL credit.
Where Family Law and International Issues Collide: Relocation and Child
Abduction Issues, 60-minute webinar presented by Rebecca McKelvey
Castaneda, with Stites & Harbison in Nashville, on Wednesday, February 25,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Telephone Consumer Protection Act: One Year After FCC Changes, 60minute webinar presented by Stan Herring, with Watts & Herring in
Birmingham, on Tuesday, March 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Fair Debt Collection Practices Act: Understanding Debtor Protections and
Creditor Boundaries, 60-minute webinar presented by Hugh Ward, with
Young Williams Law Firm, PC, in Knoxville, on Thursday, March 26, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.

On-Site Events

Medical Malpractice Conference for Tennessee Attorneys

*Now in its 8th year!*
WHEN: Friday, May 8
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1
hour of DUAL credit

FACULTY: Davidson County Circuit Judge Tom Brothers; Brandon Bass, Law
Offices of John Day; Daniel Clayton, Kinnard, Clayton & Beveridge; C. J. Gideon,
Gideon, Cooper & Essary; Ben Harrison, Cornelius & Collins; Marty Phillips,
Rainey, Kizer, Reviere & Bell; and Tom Pinckney, Of Counsel, Howell & Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of good
faith requirements; practical considerations for handling a health care liability
claim on behalf of an injured patient; techniques for deposing an expert; physician
credentialing and other hospital liability issues; trial tips and tactics from the
defense perspective; deposition strategies; the use of technology in a health care
liability case; review of recent health care liability appellate court cases; a panel
discussion of hot topics in health care liability actions; and ethical issues in
handling medical records, including HIPAA compliance.

Tennessee Business Law Conference

*New for 2015!*
WHEN: Friday, May 15
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and 1
hour of DUAL credit
FACULTY: Alexander J. Davie, Riggs Davie, Nashville; Keith C. Dennen,
Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton, Franklin; J.
Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga; Mark Ison,
Sherrard & Roe, Nashville; Thomas K. Potter, III, Burr & Forman, Nashville;
Andrew J. Pulliam, Wyatt, Tarrant & Combs, Nashville; and Richard Spore,
Bass, Berry & Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to consider,
parent/subsidiary liability, reverse piercing, and effect of Hobby Lobby;
liability and fiduciary duties of corporate officers and directors to the
corporation and the shareholders; a step-by-step guide to a business divorce
from fact-finding to the end game; recent changes to the Tennessee Nonprofit
Corporation Act optional changes to governing documents; key considerations
in selecting a business entity for example, using series LLCs and new hybrid
alternatives; drafting LLC operating agreements key provisions to include;
forming a professional service business including management services and
friendly PC arrangements involving nonprofessionals; and ethics for attorneys
in business disputes including understanding the scope of your representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or visit us
at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Supreme Court, in health care liability action, holds that pre-suit notice
given before filing of first complaint is not sufficient pre-suit notice for suit
that is refiled after nonsuit, but rules that proper sanction for noncompliance
with pre-suit notice requirement is dismissal without prejudice;
Supreme Court says that although AMA Guides do not address effect of
hearing loss at levels higher than 3000 hertz, there was evidentiary
support for trial courts determination that expert testimony established
viable means to do so;
Court of Appeals holds that retaliatory tax assessments levied against two
South Carolina companies should not be reduced or eliminated by amount
of South Carolina Second Injury Fund reimbursements paid to companies;
Court of Appeals upholds award of transitional alimony to 61-year-old
wife after 39-year marriage when wife, although possessing nursing
degree, required additional education to update her nursing license; and
Attorney general answers questions on proposed Insure Tennessee, new
component of TennCare Waiver.

SUPREME COURT
TORTS: Pre-suit notice given before filing of first complaint is not sufficient presuit notice for health care liability suit that is refiled after nonsuit of first complaint
within time provided by saving statute; dismissal without prejudice is proper
sanction for noncompliance with TCA 29-26-121(a)(1)s pre-suit notice
requirement. Foster v. Chiles, 1/27/15, Knoxville, Lee, dissent by Wade, 11 pages.
http://www.tncourts.gov/sites/default/files/fostersamuel.opn_2.pdf
http://www.tncourts.gov/sites/default/files/fostersamueldis.opn_.pdf

WORKERS COMPENSATION: In workers compensation case in which

trial court granted employees motion to alter or amend, utilized medical
experts 20% impairment rating by virtue of employees hearing loss both below
and above 3000 hertz, and increased from 10% to 30% award of permanent
partial vocational disability, because trial court accepted employees testimony
that his hearing loss, documented by objective testing to be more significant at
levels above 3000 hertz, affected his ability to hear normal, everyday speech,
and considered all other applicable factors in determining vocational disability,
evidence supported amended award; although AMA Guides do not address

effect of hearing loss at levels higher than 3000 hertz, there was evidentiary
support for trial courts determination that expert testimony established viable
means to do so. Lambdin v. Goodyear Tire & Rubber Co., 1/29/15, Jackson,
Wade, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/lambdinorvilleopn_0.pdf

WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee, Emergency
Medical Technician, alleged that he suffered heart attack as result of his
employment, evidence did not preponderate against trial courts finding that
statutory presumption created by TCA 7-51-201(b) had been rebutted and that
employee failed to carry his burden of proof on causation when evidence
showed that employee did not suffer work-related heart attack and that his duties
did not cause or advance his coronary disease. Swain v. Wilson County
Emergency Management Agency, 1/26/15, Nashville, Cantrell, 11 pages.
http://www.tba.org/sites/default/files/swainv_012715.pdf

WORKERS COMPENSATION: In case in which employee, Head Start

teacher, sustained compensable back injury, continued to work for about one
year, but then was not rehired because she had failed to meet federal education
mandate she failed to obtain Associates Degree as required by U.S.
Department of Health and Human Services trial court erred in finding that
employee had not made meaningful return to work and awarding benefits in
excess of 1.5 times her anatomical impairment when employer made reasonable
efforts to promote compliance with rule, rule was not enforced in discriminatory
manner, and employee and other Head Start employees had been aware for years
that requirement was impending; employees failure to perform her job for
reasons unrelated to her work injuries subject her to caps set out in TCA 50-6241(d). Hobbs v. Auto Owners Mutual Insurance Co., 1/23/15, Nashville,
Cantrell, 11 pages.
http://www.tncourts.gov/sites/default/files/hobbsv.-autoownersopn.pdf

COURT OF APPEALS
TORTS: Trial court erred in granting summary judgment to defendant medical
providers on basis that plaintiffs health care liability complaint was filed after
expiration of Governmental Tort Liability Act (GTLA) statute of limitation; as
held in Banks v. Bordeaux Long Term Care, 39 TAM 52-4 (Tenn.App. 2014),
and Harper v. Bradley County, 39 TAM 45-3 (Tenn.App. 2014), under TCA 2926-121(c), plaintiffs were entitled to 120-day extension on applicable statute of

limitation; legislatures decision to enact TCA 29-26-101(a)(1) and to provide

that health care liability actions governed by TCA Title 29, Chapter 26, Part 1
would include claims against the state or a political subdivision thereof
evinces clear intent of legislature to apply TCA 29-26-121s requirements to
claim against governmental entities brought pursuant to GTLA; because TCA
29-26-101(a)(1)s definition of health care liability action was enacted months
prior to substitution of that term for medical malpractice throughout Health
Care Liability Act (HCLA), there is no other purpose for creating this expansive
definition of health care liability at time it was approved other than to clarify
that claims pursuant to GTLA will be governed by HCLA. Wade v. JacksonMadison County General Hospital District, 1/27/15, WS, Stafford, 19 pages.
http://www.tncourts.gov/sites/default/files/wadeeropn.pdf

COMMERCIAL LAW: When plaintiff, stylist who has been cosmetologist for
over 25 years, met with others for purpose of creating new business organization,
Kingdom Creations, LLC (LLC) that would own and operate cosmetology
school, LLCs operating agreement identified five members, not including
plaintiff, and plaintiff filed suit claiming to have enforceable agreement to
acquire 5% interest in LLC in consideration for her intangible capital
contributions, i.e., her sweat equity rendered during formative phase of LLC, trial
court erred in granting defendants, LLC and one of its members, summary
judgment on plaintiffs breach of contract claim as there remain material
questions of fact, including specifics and significance of oral representations of
defendant member to plaintiff, whether and to what extent plaintiffs
performance was in reliance thereon, and parties intentions as it pertains to
relevant provisions of Organization by Written Consent of Kingdom Creations,
LLC; trial court erred in granting defendants summary judgment on plaintiffs
unjust enrichment claim when evidence established that genuine dispute exists
concerning value of services provided by plaintiff in facilitating acquisition of
accredited school, specifically, whether, as consequence of plaintiffs rendering
those services, benefit was conferred on defendants that defendants have, or
should have appreciated, and whether, under circumstances of case, it would be
inequitable for defendants to retain benefit without payment of value thereof; trial
court properly granted defendants summary judgment on plaintiffs claim for
promissory estoppel when plaintiff failed to identify evidence sufficient to create
genuine dispute of fact concerning whether she suffered substantial detriment
because she testified that her salon remained open and she continued to see
clients at her salon during relevant period; trial court properly granted defendants
summary judgment on plaintiffs breach of fiduciary duty and fair dealings claim
as plaintiff has never been conveyed membership interest in LLC. Bridgeforth v.
Jones, 1/26/15, MS, Clement, 40 pages.
http://www.tncourts.gov/sites/default/files/bridgeforthv.opn_.pdf

COMMERCIAL LAW: When Town of Huntsville (Town) executed lease with

Brimstone Recreation, LLC giving it the exclusive use, control and enjoyment
of centrally-located open area in town, sometimes referred to as Town Square,
during weeks prior to and including Memorial Day and Labor Day, and Trails
End Campground, LLC, competitor of Brimstone in outdoor recreation-oriented
market in and around Scott County, filed suit alleging that Town acted without
authority under its charter to execute such lease, that it created perpetuity and
monopoly in violation of state constitution, and that it violated Tennessee Trade
Practices Act (TTPA), trial court properly granted defendants (Brimstone and
Town) summary judgment; action of Town in executing lease was not ultra
vires; lease did not create unlawful monopoly when, although lease granted
Brimstone certain exclusive privileges that arguably may provide competitive
advantage, those privileges are limited in both space and time; TTPA applies
only to tangible goods, not intangible services, and trial court found that primary
business of Brimstone is to provide services. Trails End Campground LLC v.
Brimstone Recreation LLC, 1/29/15, ES, Susano, 20 pages.
http://www.tncourts.gov/sites/default/files/trails_end.pdf

TAXATION: In case in which two South Carolina companies (claimants) filed

suit challenging their Tennessee retaliatory tax assessments, Tennessee Claims
Commission erred in holding that Department of Commerce and Insurance
(Department) did not calculate South Carolina tax burden correctly because it
did not include reimbursements received by claimants from South Carolinas
Second Injury Fund; Department correctly concluded that assessments against
claimants should not be reduced or eliminated by South Carolina Second Injury
Fund reimbursements paid to claimants, which are paid to insurance companies
without regard to amount of tax assessment; Tennessees retaliatory tax statute
merely requires comparison of tax burdens using existing numbers. Companion
Property & Casualty Insurance Co. v. State, 1/26/15, MS, Bennett, 9 pages.
http://www.tncourts.gov/sites/default/files/companionpropertyandcasualty.opn_.pdf

PROPERTY: In case in which Taylor conveyed undivided one-third interest

in property to Hanzelik, and in deed, Taylor agreed to pay all taxes, expenses
and obligations regarding property, including those on Hanzeliks portion,
Taylor later conveyed her remaining two-thirds interest in property to
Coughlin, who later conveyed it to limited liability company, which later
conveyed it to defendants, and Hanzelik argued that Taylors covenant to pay
property taxes for entire ownership interest, including Hanzeliks one-third
interest, is binding on defendants, trial court erred in ordering defendants to
pay entire property tax bill when there was no evidence of intention that
Taylors covenant would run with land and bind successor grantees of two-

thirds interest. State ex rel. Commissioner, Department of Transportation v.

Dyskin, 1/29/15, ES, Susano, 8 pages.
http://www.tncourts.gov/sites/default/files/state_ex_rel_commissioner_of_transportation_v_dyskin_corr.pdf

FAMILY LAW: Evidence supported trial courts determination that child was
victim of severe child abuse by father when 3-year-old child made multiple
disclosures to multiple people that father poked, rubbed, and otherwise touched
her vagina, childs vagina was red or irritated in aftermath of fathers touching,
child disclosed that she once told father to stop, child exhibited mood swings
and exhibited opposition to going to fathers home during this period, and child,
concurrent with underlying timeframe of alleged episodes of abuse, engaged in
acts of self-touching or self-stimulation; fathers explanation that touching was
normal parenting behavior is not credible touching ones 3-year-old daughters
vagina, to point where she comes home with vaginal irritation and speaks out
about touching to numerous parties, does not fall within category of normal
parenting responsibilities. In re Emmalee O., 1/27/15, ES, Swiney, 19 pages.
http://www.tncourts.gov/sites/default/files/inreemmaleeo1aopn.pdf

FAMILY LAW: in case in which parties divorced after 39 years of marriage,

trial court did not abuse discretion in awarding wife $1,500 per month in
transitional alimony until age 65 when, although she has nursing degree, wife is
economically disadvantaged as compared to husband, wife requires additional
education to update her nursing license, and unlike husband, wife lacks funds
from sources other than her division of marital property to sustain her; evidence
did not preponderate against trial courts classification of certificate of deposit
(CD), purchased by husband with his retroactive VA benefits, as marital
property; while retroactive VA benefits were awarded for husbands service
prior to marriage, husband used funds to purchase joint CD with wife, thereby
creating rebuttable presumption that CD was marital property; husband
submitted no evidence to establish that he ever intended to keep retroactive VA
benefits as his separate property during marriage, and, in fact, husbands intent
to keep benefits as his separate property surfaced only after demise of parties
marriage. Phipps v. Phipps, 1/27/15, ES, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/phippsopn.pdf

CRIMINAL LAW: Criminal court erred in finding juvenile delinquent by act of

aggravated assault, pursuant to TCA 39-13-102(a)(1)(B), when required element of
bodily injury was not proven; even though state pled wrong statutory section, i.e.,
TCA 39-13-102(a)(1)(B), and actually intended to charge juvenile with aggravated
assault by intentionally or knowingly causing police officer to reasonably fear
imminent bodily injury by using or displaying deadly weapon, because state
specifically charged juvenile in its petition with aggravated assault by causing
serious bodily injury to another, and criminal court found juvenile delinquent

based on this offense, judgment of criminal court is reversed when state failed to
prove bodily injury. In re Juanita W., 1/29/15, ES, Swiney, 9 pages.
http://www.tncourts.gov/sites/default/files/inrejuanitawopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In murder case, trial judge did not abuse
discretion in admitting defendants statement to police when defendant was
questioned by officers about his involvement in shooting death of victim,
investigator took nearly 13 pages of notes during interview, these notes were
reduced to written statement at conclusion of interrogation, and statement was
signed by defendant; there is no requirement in Tennessee that interrogations be
electronically recorded. State v. Allen, 1/23/15, Knoxville, Easter, 21 pages.
http://www.tncourts.gov/sites/default/files/allenjameshenryopn.pdf

CRIMINAL LAW: In case in which victim testified that defendant put his hand
into her pants and underwear and put his finger into her vagina, defendants
dual convictions for rape of child violate double jeopardy when two penetrations
of victim were part of single, continuous sexual episode both counts of child
rape involved defendants and victims same body parts and were separated by
only few seconds, and defendant did not reposition victim as victim was lying on
her back for both penetrations; defendants two rape convictions are merged into
single conviction, and case is remanded to trial court for resentencing. State v.
Phillips, 1/27/15, Nashville, Ogle, 16 pages.
http://www.tncourts.gov/sites/default/files/phillipsnicholaskeithopn.pdf

CRIMINAL PROCEDURE: In case in which defendant pled guilty to identity

theft, fraudulent use of credit card, and theft in 2014 and was sentenced to 15
years, trial court did not err in denying defendants motion to dismiss or in
holding that 180-day time limitation for prisoner transfer as proscribed by
Interstate Compact on Detainers was not applicable; when defendants federal
sentence in Kentucky expired on 5/25/12, which was within 180-day IAD
deadline, IAD became inapplicable to defendants case; because defendants
federal sentence in Kentucky had expired, any subsequent delays in case in
Tennessee, of which there were several, could not have affected early release or
rehabilitative alternatives regarding his prison sentence in Kentucky. State v.
Barefoot, 1/28/15, Nashville, Wedemeyer, 9 pages.
http://www.tncourts.gov/sites/default/files/barefootropn.pdf

SIXTH CIRCUIT COURT OF APPEALS

GOVERNMENT: In suit pursuant to 42 USC 1983 in which plaintiffs, former
county administrators of elections from eight counties in Tennessee, allege that
following 2008 statewide elections and shift in controlling political party in state
assembly, they were ousted from their positions by defendants, county election
commissioners, because of their actual or perceived political party affiliation, in
violation of their First and Fourteenth Amendment rights of freedom of speech
and equal protection, district court properly granted defendants summary
judgment; position of Tennessee administrator of elections is position for which
political affiliation is permissible requirement for effective performance of that
public office. Peterson v. Dean, 1/28/15, Griffin, dissent by Clay, 26 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0016p-06.pdf

TRIAL COURTS
TAXATION: Sears, Roebuck and Company, retailer of consumer goods, is not
entitled, under Bad Debt Statute, TCA 67-6-507(e), to refund of $6,985 in sales tax
paid at time of charges made on Sears private label credit card, which was owned
by Citibank, when purchasers subsequently defaulted and did not pay amounts they
financed on credit cards; plain text of TCA 67-6-507(e) does not allow dealer, such
as Sears, to deduct bad debts that are owed to and written off by someone else,
such as Citibank, who actually owned credit card in question. Sears, Roebuck &
Co. v. Roberts, 10/15/14, Davidson Chancery, Lyle, 14 pages.

ATTORNEY GENERAL OPINION

GOVERNMENT: Neither federal government nor federal Centers for Medicare
and Medicaid Services (CMS) may unilaterally change proposed Insure
Tennessee plan should it be approved by Tennessee General Assembly, although
it is possible that Congress, through legislation, or CMS, through regulation or
policy statement, could require state to make changes to Insure Tennessee plan;
State of Tennessee may unilaterally decide to discontinue coverage for Insure
Tennessee population as long as implementation satisfies certain notice and
phase-out procedures set out in TennCare Waiver. Attorney General Opinion
15-06, 1/26/15, 14 pages.
http://www.tn.gov/attorneygeneral/op/2015/op15-06.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 email 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