TAM Bytes, August 26, 2013

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Constitutionality of medical impairment rating process, tracing source of funds used to purchase joint property back to separate property, and expectation of privacy in computer taken to store for repairs, and more from Tennessee’s appellate courts …

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TAM-BYTES August 26, 2013 Vol. 16, No. 34
2013 TAM CLE CALENDAR

Audio Conferences
“From Smartphones to iPads: Legal Issues When Employees Bring Their Own Devices to Work,” 60-minute webinar presented by James Crumlin, Nashville attorney, on Thursday, September 5 at 2 p.m. (Central), 3 p.m. (Eastern). “The ‘Smoking Guns’ of Social Media: How to Collect, Preserve, and Admit Social Media Evidence at Trial,” 60-minute webinar presented by Marcus Chatterton, Birmingham attorney, on Wednesday, September 11 at 10 a.m. (Central), 11 a.m. (Eastern). “Medical Malpractice in Tennessee: Where We Stand in 2013” 60-minute webinar presented by Chris Tardio, Nashville attorney, on Tuesday, September 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: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; 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; Madison L. Martin, Stites & Harbison PLLC; 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 state’s 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 state’s trust laws as well as the conservatorship law.

MEMPHIS FACULTY: Judge Karen D. Webster, Shelby County Probate Court; William
(Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.

KNOXVILLE FACULTY: 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: Elaine Beeler, Clerk & Master, Chancery Court for 21st Judicial
District (Hickman, Lewis, Perry, and Williamson counties); 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 state’s trust laws; 2013 changes to the state’s 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

IN THIS WEEK’S TAM-Bytes Supreme Court, in workers’ compensation case, holds that medical impairment rating process does not violate constitutional principles; Court of Appeals says fact that it is possible to trace source of funds used to purchase joint property back to separate property is irrelevant for purposes of rebutting presumption of gift to marital estate created by transmutation; Court of Appeals affirms dismissal of suit against non-resident defendants for lack of personal jurisdiction in suit arising out of purchase of asset-backed securities; Court of Criminal Appeals says Financial Records Privacy Act, which provides that subpoena authorizing production of financial records may be served upon financial institution only if, in any judicial proceeding in which customer is named party, copy of subpoena has been served on customer, does not provide for suppression of bank records as penalty for non-compliance with act; In case in which defendant was convicted of sexual exploitation of minor, Court of Criminal Appeals upholds trial court’s denial of motion to suppress evidence seized from defendant’s computer, which defendant had taken to store to have repaired, when defendant did not have reasonable expectation of privacy in computer once he took it for repairs and gave store his computer password; and

Sixth Circuit, in rejecting constitutional challenge by vendors of The Contributor, says ordinance of City of Brentwood prohibiting selling newspaper on streets within city left open adequate alternative channels of communication.

SUPREME COURT WORKERS’ COMPENSATION: TCA 50-6-204(d)(5), which sets out medical impairment rating (MIR) process, is compliant with constitutional standards; presumption of accuracy afforded independent medical examiner who is appointed under MIR program does not violate separation of powers doctrine and meets procedural and substantive standards of due process; evidence preponderated against trial court’s alternative finding that presumption of correctness afforded MIR physician’s anatomical rating was overcome by clear and convincing evidence. Mansell v. Bridgestone Firestone North American Tire LLC, 8/20/13, Nashville, Wade, unanimous 22 pages.
http://www.tncourts.gov/sites/default/files/mansellwilliamopn_0.pdf

WORKERS’ COMP PANEL WORKERS’ COMPENSATION: In case in which employee injured his back on 1/1/10, did not return to work for employer, went to emergency room on 9/1/10 complaining of severe back pain, and MRI revealed herniated disc, evidence did not preponderate against trial court’s finding that herniated disc and surgery were causally related to employee’s 1/1/10 work injury when tr eating physician opined that original injury progressed and resulted in herniated disc; award of benefits for 36% permanent disability, six times impairment rating assigned by doctor, is vacated, and case is remanded for trial court to consider whether record supports award of six times anatomical impairment, and, if so, for entry of order consistent with statutory requirements; evidence did not preponderate against trial court’s finding that employee was not permanently and totally disabled when doctor opined in 5/11 that employee was capable of medium-level work with lifting restriction of 25 pounds, doctor revised opinion, stating that employee was capable of only sedentary to light work, with lifting restriction of 10 pounds, and doctor changed his opinion not because of any additional examination or testing of employee but as result of conversations with employee’s attorney. Bragg v. Beach Oil Co., 8/21/13, Nashville, Clark, 16 pages.
http://www.tncourts.gov/sites/default/files/bragg_v_beach_oil_opnjo.pdf

COURT OF APPEALS FAMILY LAW: Evidence preponderated against trial court’s finding that termination of mother’s parental rights was in child’s best interest when termination of mother’s parental rights would not further goal of achieving permanency for child given upheaval in child’s foster placement – child was recently removed from his long-term foster placement and placed with new foster family; given fact that mother, who had child at age 13 and who has no criminal history and has never had any drug, alcohol, or physical abuse issue, is only consistent adult presence in child’s life, fact that mother has maintained regular visitation with child and has continued to participate in child’s medical care, and fact that mother has demonstrated dogged determination to overcome odds against her, providing powerful role model for child with many obstacles of his own, trial court’s decision to termination mother’s parental rights is reversed. In re J.R.P., 8/19/13, WS at Nashville, Kirby, 15 pages.
http://www.tncourts.gov/sites/default/files/inre_jrp_opn.pdf

FAMILY LAW: Evidence did not preponderate against trial court ’s classification of parties’ marital residence (Brow Estates home) as marital property when home was titled in names of both parties and treated as marital property by parties throughout marriage, by managing and maintaining it, even though home was purchased during marriage with proceeds from sale of husband ’s premarital property; fact that it is possible to trace source of funds used to purchase joint property back to separate property is irrelevant for purposes of rebutting presumption of gift to marital estate created by transmutation; party who wishes to rebut presumption of gift to marital estate must present clear evidence of circumstances or communications indicating intent that property remain separate. Potter v. Potter, 8/19/13, ES, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/potter.pdf

CIVIL PROCEDURE: When plaintiff filed complaint on 2/23/09 against former co-worker alleging attempted assault and “aiding in the termination of employment,” plaintiff filed amended complaint entitled “Intentional Infliction of Emotional Distress” on 8/6/09 naming former employer and other employees as additional defendants, amended complaint did not relate back to date of original complaint pursuant to TRCP 15.03 when employer did not receive notice of original complaint within specified time frame and there was nothing to indicate that employer would have known from original complaint “that but for misnomer or mistake concerning [its] identity, action would have been brought against [it]”; TCA 20-1-119, which gives plaintiff 90 days to amend complaint or file separate action when defendant alleges non-party caused or contributed to plaintiff’s injury, was not

triggered by motion to dismiss characterizing former employer as indispensable party. Johnson v. Trane U.S. Inc., 8/19/13, WS, Highers, 10 pages.
http://www.tncourts.gov/sites/default/files/johnsonrodneyvopn.pdf

CIVIL PROCEDURE: In suit arising out of purchase of asset-backed securities, trial court properly dismissed suit against non-resident defendants based on lack of personal jurisdiction; presence of issuing entities and collateral manager in forum state cannot be characterized as continuous and systematic when issuing entities and collateral manager never visited Tennessee, were incorporated elsewhere, and whatever revenue they derived from debts located in Tennessee paled in comparison to revenue and purchasing activity discussed in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 US 408 (1984); contacts of rating agencies with Tennessee – rating agencies marketed their services to Tennessee, engaged in rating of debt issuances for Tennessee on regular basis, and, in some cases, maintained office in Tennessee for limited number of employees – while establishing that rating agencies engaged in business with Tennessee, falls short of collectively establishing prima face showing that activities at issue were sufficiently continuous and systematic such that it would be fair to subject rating agencies to suit in Tennessee even if cause of action arose elsewhere; while Tennessee residents who bank with plaintiff may encounter residual effects of plaintiff’s losses, there is no evidence that would establish that nonresident defendants “purposefully targeted Tennessee” in this case and “should reasonably anticipate being haled into court here.” First Community Bank N.A. v. First Tennessee Bank N.A., 8/20/13, ES, McClarty, 26 pages.
http://www.tncourts.gov/sites/default/files/communitybankopn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In murder case, trial judge erred in denying defendant’s motion to suppress his first two statements to police when statements were given prior to defendant being read his Miranda rights, defendant was in custody and being questioned by police officer at time he offered two unsolicited confessions, and officer’s questions were not designed to elicit confession from defendant, but error was harmless in light of defendant’s admissions of guilt prior to his arrest and his post-Miranda confession, which was properly admitted at trial; Financial Records Privacy Act (Act), which provides that subpoena authorizing production of financial records may be served upon financial institution only if, in any judicial proceeding in which customer is named party, copy of subpoena has been served on customer, does not provide for suppression of bank records as penalty for non-compliance with terms of Act; fact that defendant left threatening voicemail for victim few days prior to victim’s murder goes to material issue of intent, which is element of charged offense of premeditated murder, and as such,

trial court correctly ruled that voicemail testimony was admissible under TRE 404(b). State v. Naive, 8/21/13, Nashville, Witt, 31 pages.
http://www.tncourts.gov/sites/default/files/naivejamesmopn.pdf

CRIMINAL PROCEDURE: Trial court properly denied defendant’s motion to suppress evidence seized from his computer, which defendant had taken to Staples to have repaired, when defendant did not have reasonable expectation of privacy in his computer once he took computer to Staples, requested that his computer be repaired, and gave Staples his computer password, and even though defendant arguably attempted to maintain expectation of privacy by labeling folder “PVT,” which defendant claimed stood for “Private,” individual does not have reasonable expectation of privacy when he or she voluntarily turns over information to third parties; neither officer’s search of computer nor his subsequent seizure of computer after discovering pornographic images of minors on computer, violated prohibition against unreasonable searches and seizures given fact that when Staples’ computer technician opened “PVT” folder on computer, all of images in folder were “exposed” as thumbnails, and it did not exceed scope of technician’s initial search for officer to look at enough images to ensure that images were child pornography. State v. Dale, 8/19/13, Knoxville, Page, 8 pages.
http://www.tncourts.gov/sites/default/files/daleeugeneoopn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of failing to sign a Tennessee Bureau of Investigation (TBI) sexual offender registration form on or about 8/10/10 when, because defendant was never released from jail following his incarceration on 8/9/10, obligation to complete and sign TBI registration form within 48 hours prior to his release, as required by TCA 40-39-203(b)(3), never arose; because defendant’s actions on 8/10/10 were not criminalized at that time, defendant is not guilty of offense; TCA 40-39-203(a)(1), which requires that person register or report as sexual offender after “establishing a physical presence at a particular location,” does not apply to incarcerated sexual offenders; defendant’s conviction in Count 2 of failing to sign TBI sexual offender registration form is reversed and dismissed. State v. Conaser, 8/21/13, Nashville, Thomas, partial dissent by Ogle, 24 pages.
http://www.tncourts.gov/sites/default/files/conaserjimgeorgeopn2.pdf http://www.tncourts.gov/sites/default/files/conaserjimgeorgeogledis.pdf

CRIMINAL PROCEDURE: Although defendant is entitled to discovery of his or her testimony (and that of any co-defendants being tried jointly) before grand jury, there is no general right to discovery of grand jury testimony; although trial judge, under limited circumstances, has authority to permit discovery of grand jury testimony (1) upon allegation of perjury or (2) upon investigation by court of inconsistency of testimony, TRCrP 6(k) does not require that all grand jury

“materials” be turned over to defense, rather, rule requires only disclosure of witness’s testimony in order to ascertain consistency of witness’s testimony or to disclose grand jury testimony of any witness charged with perjury. State v. Crawford, 8/19/13, Knoxville, Thomas, 38 pages.
http://www.tncourts.gov/sites/default/files/crawfordroberteugenejropn.pdf

SIXTH CIRCUIT COURT OF APPEALS COMMERCIAL LAW: District court’s rejection of reorganization plan in bankruptcy case does not create final appealable order under 28 USC 158(d)(1). Lindsey v. Pinnacle Nation Bank, 8/13/13, Sutton, 7 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0223p-06.pdf

GOVERNMENT: When several members of public, who had previously come to Coffee County Codes Department seeking assistance of Darden only to find Darden absent, again came looking for him on 10/12/09, and he was absent yet again, last two people complained, plaintiff, permits clerk whose direct supervisor was Darden, escorted them to mayor’s office, where she told mayor “what was going on,” Darden informed plaintiff on 5/27/10 via letter that her position was terminated because of budget constraints and lack of sufficient funding, and plaintiff filed suit against Coffee County and Darden (defendants) alleging federal claims based on 42 USC 1983, plaintiff was not speaking as citizen based on context and general content of speech and absence of specific content of her speech in record, and hence, summary judgment was properly granted to defendants; plaintiff’s speech owed its existence to her employment, and she spoke as public employee and not as citizen. Keeling v. Coffee County, 8/8/13, McKeague, 13 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0738n-06.pdf

CONSTITUTIONAL LAW: In suit by two vendors of The Contributor, newspaper written and sold by homeless and formerly homeless persons, challenging constitutionality of revised ordinance of City of Brentwood prohibiting sale of newspapers, magazines, and similar materials on any portion of any street within city and prohibiting handing such materials to occupant of any motor vehicle that is on street or taking any action intended or reasonably calculated to cause vehicle occupant to hand anything to person selling or distributing materials, plaintiffs failed to show that proffered alternative channels of communication are inadequate and hence, ordinance leaves open adequate alternative channels of communication, e.g., door-to-door sales. Contributor v. City of Brentwood, 8/14/13, McKeague, 9 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0225p-06.pdf

CONSTITUTIONAL LAW: In suit by plaintiff, who travels to public universities to share his religious beliefs with college students, targets outdoor spaces on campuses, and shares his beliefs through dialogue, distribution of literature, and display of signs, alleging that University of Tennessee’s (University’s) policy requiring persons unaffiliated with University to obtain sponsorship in order to speak on campus violated his First Amendment right to free speech and his Fourteenth Amendment right to due process, district court erred in holding that plaintiff was not entitled to preliminary injunction; it was likely that plaintiff would succeed on merits of vagueness challenge – policy forbids doing of act in terms so vague that people of ordinary intelligence guess at its meaning and differ as to its application, University’s sponsorship requirement opens door to arbitrary and discriminatory enforcement, and University’s vague sponsorship requirement threatens to chill speech. McGlone v. Cheek, 8/2/13, Martin, 11 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0710n-06.pdf

CRIMINAL PROCEDURE: Using “doubly” deferential standards of 28 USC 2254(d) and Strickland, state court’s determination that defense counsel’s performance in case in which petitioner received death sentence was not deficient was neither contrary to nor unreasonable application of federal law when trial counsel advised petitioner to plead guilty to premeditated murder because of overwhelming evidence of his guilt, to give defense credibility, to limit proof prosecution could present, and to show petitioner’s remorse. Hodges v. Colson, 8/14/13, Batchelder, partial dissent by White, 42 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0224a-06.pdf

REVENUE RULING TAXATION: Whether compensation paid by Interest Charge Domestic International Sales Corporation, in form of dividend for federal tax purposes, is deductible from net earnings for Tennessee excise tax purposes. Department of Revenue Letter Ruling 13-08, 7/11/13, 5 pages.
http://www.tn.gov/revenue/rulings/fae/13-08fe.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 state’s web site by clicking here: http://www.tncourts.gov

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