Professional Documents
Culture Documents
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
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.
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.
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.
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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.
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
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
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
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
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