TAM Bytes, May 12, 2014

TAM-BYTES
May 12, 2014
Vol. 17, No. 19
2014 TAM CLE CALENDAR

Webinars
“Common Probate Problems Facing Tennessee Attorneys,” 60-minute webinar
presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday,
June 11, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Search and Seizure: History and Update on Fourth Amendment Law,” 60-
minute webinar presented by Lara McCauley Alvis, Birmingham attorney, on
Thursday, June 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Tennessee Workers’ Compensation: Are You Ready for the July 1
st
Changes?,”
60-minute webinar presented by Pele Houk Godkin, Nashville attorney, on Tuesday,
June 24, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Preparing Clients for Depositions in Tennessee: A Step-by-Step Process,” 60-
minute webinar presented by Burke Keaty, Brentwood attorney, on Tuesday, June
24, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEK’S TAM-Bytes

 Court of Appeals affirms trial court’s denial of wife’s request for alimony when
husband lacked ability to pay spousal support;
 Court of Criminal Appeals holds, in issue of first impression, that no warrant is
necessary before police officer can take “second look” at items previously
seized during inventory search; and
 Court of Criminal Appeals upholds trial court’s grant of defendant’s motion to
suppress results of blood alcohol test when officer did not “continuously”
observe defendant for requisite 20-minute period prior to test as required by
Sensing.

COURT OF APPEALS

TORTS: Material evidence supported jury’s determination that parties were equally at
fault for automobile accident when vehicles collided as plaintiff, who was traveling
south, prepared to turn right while defendant, who was traveling north on same highway,
was turning left onto same road. Salyer v. Linnen, 5/6/14, ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/salyeropn.pdf

EMPLOYMENT: Substantial and material evidence supported trial court’s
conclusion that claimant voluntarily quit her job without good cause connected to her
work, thereby disqualifying herself from receiving unemployment compensation
benefits, in case in which claimant quit her job because she anticipated that she would
be fired. Barner v. Phillips, 5/5/14, WS at Nashville, Farmer, 12 pages.
http://www.tncourts.gov/sites/default/files/barnerlena.opn_.pdf

PROPERTY: Verified complaint is not condition precedent to investigation and
contested hearing by Real Estate Commission (Commission) to investigate possible
violations of Real Estate Broker Act and hold disciplinary hearings; nothing in TCA
62-13-312(a) prevents Commission from exercising its discretion to investigate facts
and convene contested hearing, even upon filing of unverified complaint; although
“Notice of Charges” sent to real estate broker (Bobo) did not contain correct citation
to governing statute – it mistakenly cited TCA 62-13-104(b)(7)(B) when it should
have cited TCA 62-13-312(b) – such typographical error was harmless and did not
invalidate notice of charges sent to Bobo concerning charges against her; chancery
court erred in reversing decision of Commission permanently revoking real estate
broker’s license. Bobo v. Tennessee Real Estate Commission, 5/5/14, WS at
Nashville, Stafford, 31 pages.
http://www.tncourts.gov/sites/default/files/bobod.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s denial of wife’s
request for alimony when husband lacked ability to pay spousal support – husband
previously worked as police officer grossing $3,600 per month, but at time of divorce,
he was grossing only approximately $1,600 per month working as hourly employee at
department store, husband is solely indebted on promissory note with remaining
balance of approximately $100,000, which is secured by mortgage on marital
residence, and was responsible for paying wife $430 per month in child support for
parties’ child; fact that husband was awarded equity in marital residence and
retirement benefits, assets which may not become liquid for many years, does not
render husband capable of providing support to abate wife’s current alleged need;
although wife has acted as homemaker and home-school educator to parties’ child,
and desires to continue doing so, in order to maintain two households, it may become
necessary for wife to seek employment outside home, and she has presented no
evidence to indicate that she is unable to work. Litton v. Litton, 5/5/14, WS at
Nashville, Highers, 10 pages.
http://www.tncourts.gov/sites/default/files/littonrobertc.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s award, during
divorce hearing, of $38,284 in compensatory damages and $10,000 in punitive
damages to wife for injuries she allegedly sustained at hands of husband; although
husband initially took position that assault did not occur and that wife fabricated
incident, he subsequently pled guilty to charge and received three years of supervised
probation and was ordered to pay wife restitution, and wife testified that injuries she
received were painful, that she suffered permanent injury from fractured tooth below
her gumline, that, for period of time, she was unable to consume anything but liquids,
and that she was constantly scared to point that she obtained surveillance system to
monitor outside of her home. Rayfield v. Rayfield, 5/6/14, ES, McClarty, 15 pages.
http://www.tncourts.gov/sites/default/files/rayfieldopn.pdf

CIVIL PROCEDURE: Plaintiffs’ failure to return process as served or unserved
within 90 days of issuance does not mandate dismissal of action based on statute of
limitation, but trial court did not determine whether defendant Thomas was served in
11/10, as plaintiffs’ counsel asserted in her 12/11 affidavit, nor did trial court
determine when and to which defendants alias summonses were in fact issued;
although trial court dismissed matter with respect to all defendants based on statute of
limitation, it appears that process was reissued with respect to some but not all
defendants within one-year period mandated by TRCP 3 and 4.03; case is remanded
for trial court to determine extent to which process was timely reissued with respect to
each defendant. Monday v. Thomas, 5/5/14, WS at Nashville, Farmer, 5 pages.
http://www.tncourts.gov/sites/default/files/mondayjoycee.opn_.pdf


COURT OF CRIMINAL APPEALS

EVIDENCE: In aggravated robbery case, trial judge did not abuse discretion in
admitting defendant’s videotaped confession which included references to three text
messages sent from one co-defendant to another co-defendant discussing upcoming
robbery, when, even if text messages were inadmissible hearsay, defendant acquiesced
to admission of evidence at trial by abandoning his hearsay objection after parties
agreed to admission of photographs of text messages, and given that defendant’s
written confession was already in evidence, text messages did not further incriminate
defendant. State v. Chapman, 5/5/14, Knoxville, Page, 6 pages.
http://www.tncourts.gov/sites/default/files/chapmanjonathanrayopn.pdf

CRIMINAL PROCEDURE: Issue of whether warrant is needed before police
officer can take “second look” at items previously seized during inventory search is
one of first impression in Tennessee, but consensus among jurisdictions that have
address this issue appears to be that once person has “been lawfully arrested and his
property has been lawfully seized by law enforcement personnel pursuant to that
arrest, the arrestee has no reasonable expectation of privacy in that property, and later
examination of the property by another law enforcement official does not violate the
Fourth Amendment”; arrestee has no reasonable expectation that police will not
scrutinize closely those items that are in their legitimate custody, discovering
evidence, perhaps, even where none was initially suspected, and fact that items were
evidence of separate crime from DUI for which defendant was initially arrested does
not alter this analysis because test to determine reasonableness examines individual’s
subjective expectation of privacy and not “police officer’s investigatory motive.”
State v. Morris, 5/6/14, Knoxville, Thomas, 11 pages.
http://www.tncourts.gov/sites/default/files/morrisharoldopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial court did not abuse discretion in
granting defendant’s motion to suppress results of blood alcohol test based upon
violation of State v. Sensing, 843 SW2d 412 (Tenn. 1992), when officer did not
“continuously” observe defendant for requisite 20-minute period prior to test as
required by Sensing; fact that officer could be heard shuffling papers during 20-
minute observation period, when coupled with officer’s testimony that he shifted
things in his lap on multiple occasions and his testimony that he shifted his gaze
between video screen and defendant during observational period, supports trial court’s
finding that “the Officer was likely performing other tasks or was otherwise
distracted, it is possible that the Officer missed the very functions that he was charged
with observing”; although Sensing does not require 100% certainty that defendant’s
mouth remained free of foreign matter for period of 20 minutes prior to defendant
taking breath alcohol test, state failed to prove by preponderance of evidence that
officer’s observation was adequately performed as to prevent silent or surreptitious
bodily function to have occurred outside of range of camera’s perception. State v.
Schafer, 5/5/14, Jackson, Wedemeyer, 10 pages.
http://www.tncourts.gov/sites/default/files/schafershanaopn.pdf

CRIMINAL PROCEDURE: Trial court’s error regarding number of peremptory
strikes afforded defendant in felony reckless endangerment and DUI case – trial judge
erroneously stated that defendant was only entitled to three peremptory challenges,
instead of eight challenges due her because she was charged with felony – did not
affect jury’s verdict and did not prejudice defendant’s trial when defendant failed to
exercise all three of peremptory challenges that defense counsel thought were
available, and there is no indication that she would have exercised more peremptory
challenges than she did had she been told that she had total of eight. State v. Palmer,
5/6/14, Knoxville, Bivins, 5 pages.
http://www.tncourts.gov/sites/default/files/palmerlopn.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