TAM Bytes, May 27, 2013

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Compensation under inverse condemnation statute for homeowners’ association’s equitable title in open space, Second Amendment challenge to statute restricting carrying of firearms, allowing minor victim to testify through anatomical drawings, and more from Tennessee’s appellate courts …

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TAM-BYTES May 27, 2013 Vol. 16, No. 21
2013 CLE CALENDAR Audio Conferences “Creditors’ Rights in Tennessee: 10 Collection Strategies,” 60-minute audio conference presented by David Anthony, Nasville attorney, on Thursday, June 6 at 10 a.m. (Central), 11 a.m. (Eastern). “Dividing Specialty Retirement Plans: A Primer for Tennessee Attorneys,” 60-minute webinar presented by James D. Helton, Brentwood attorney, on Thursday, June 6 at 2 p.m. (Central), 3 p.m. (Eastern). “Liability of Insurance Agents: The Ins and Outs of Handling Claims in Tennessee,” 60-minute webinar presented by Chad Naffziger, Jackson attorney, on Tuesday, June 25 at 2p.m. (Central), 3 p.m. (Eastern). “Slips, Trips, and Falls in Tennessee: Premises Liability and Defenses in Tennessee,” 90-minute audio conference presented by Bryan Moseley, Murfreesboro attorney, on Wednesday, June 26 at 10 a.m. (Central), 11 a.m. (Eastern). “Impact of the Greenbank Decision: Challenges to Foreclosure Sales in Tennessee,” 60-minute webinar presented by Sean Kirk, Nashville attorney, on Wednesday, June 26 at 2p.m. (Central), 3 p.m. (Eastern). “Alimony in Tennessee: Recent Cases and Developments,” 60-minute audio conference presented by Kevin Shepherd, Maryville attorney, on Thursday, June 27 at 2p.m. (Central), 3 p.m. (Eastern). For more information or to register for any of our CLE events, call (800) 2746774 or visit us at www.mleesmith.com IN THIS WEEK’S TAM-Bytes Supreme Court affirms assessment of costs of disciplinary proceedings to disciplined attorney and holds Tennessee’s attorney disciplinary procedure is consistent with constitutional due process requirements;

Court of Appeals rules homeowners’ association’s equitable title in open space is valuable property interest, for which it is entitled to just compensation under inverse condemnation statute; Court of Appeals holds that TCA 39-17-1307(a)(1), which restricts carrying of firearms by making it misdemeanor for person to carry, with intent to go armed, firearm, knife with blade length exceeding four inches, or club, is constitutional; Court of Criminal Appeals rules officer was justified in approaching defendant and asking for some identification or his driver’s license after defendant agreed to speak with officer, in spite of fact that officer was motivated by his desire to investigate possible drug transaction; Court of Criminal Appeals holds, in aggravated sexual battery case, trial judge did not err in allowing minor victim to testify through anatomical drawings rather than verbal testimony, which permitted prosecutor to lead victim; and Sixth Circuit, in case of first impression, holds Section 2412(d) of Equal Access to Justice Act, which requires award of attorney fees to prevailing private party “except as otherwise specifically provided by statute,” unless court finds that position of United States was “substantially justified” or that special circumstances make award unjust, applies to actions brought by EEOC under Age Discrimination in Employment Act.

SUPREME COURT PROFESSION OF LAW: In case in which attorney was suspended from practice of law for 11 months and 29 days, Board of Professional Responsibility (Board) properly assessed costs associated with disciplinary proceedings against attorney; Tennessee’s attorney disciplinary procedure is consistent with due process requirements of both federal and state constitutions; disqualification standards applicable to judges do not apply to members of Board. Moncier v. Board of Professional Responsibility, 5/24/13, Knoxville, Clark, unanimous, 34 pages.
http://www.tncourts.gov/sites/default/files/moncierhs_opn_2.pdf

COURT OF APPEALS EMPLOYMENT: Substantial and material evidence supported decision of Designee of Commissioner of Labor and Workforce Development that claimant was terminated for engaging in work-related misconduct, including use of racial slur word toward co-employee, which disqualified her from receiving

unemployment compensation benefits. Blackmon v. Eaton Electrical, 5/17/13, WS, Highers, 9 pages.
http://www.tncourts.gov/sites/default/files/blackmonrubyopn.pdf

PROPERTY: In case in which homeowners’ association of residential subdivision in Brentwood (Association) filed suit seeking compensation from City of Brentwood (City) for loss of property rights in portion of subdivision’s open space – City acquired property by purchasing it from subdivision developers without Association’s knowledge – trial court erred in granting City partial summary judgment when Association had equitable interest in open space pursuant to “Declaration of Protective Covenants, Conditions, and Restrictions ” of subdivision, which developers drafted and which required developers to deed completed open space in subdivision to Association; Association ’s equitable title in open space is valuable property interest, for which it is entitled to just compensation under inverse condemnation statute. Willowmet Homeowners Association Inc. v. City of Brentwood, 5/16/13, MS, Clement, 15 pages.
http://www.tncourts.gov/sites/default/files/willowmet_opn.pdf

ESTATES & TRUSTS: Given fact that, in solemn form proceeding, will contest must be initiated, if at all, prior to entry of final order admitting will to probate in solemn form, and fact that contestant did not file his will contest until after entry of order entering will in solemn form, trial court did not err in dismissing claimant’s will contest. In re Estate of Burke, 5/21/13, WS at Nashville, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/inreestateofburke_opn.pdf

FAMILY LAW: Trial court did not abuse discretion in naming father primary residential parent of parties’ child when, although both parents have served as child’s primary caregiver, both parents have exhibited behavior tending to discourage close relationship with other parent, both parents have engaged in excessive alcohol consumption, and father was arrested twice for domestic violence against mother, father has larger support network in Union City than mother has in Jackson – father’s parents live close to him and are willing and able to care for child as needed, while mother has no family support system where she has chosen to live, and her job and her commute mean that she must be at work for over 12 hours per day – father’s work schedule is more flexible than mother’s, and since parties’ separation, father has been more stable influence in child’s life. Wood v. Wood, 5/16/13, WS, Stafford, 12 pages.
http://www.tncourts.gov/sites/default/files/woodropn.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s termination of father’s parental rights based on father’s commission of severe child abuse when there was evidence that father was abusing drugs and was “out of it” at time

when he was responsible for care of medically fragile child, father contributed to causing child to be without medication that was prescribed to control his seizures – father “spilled” child’s medication and did not attempt to refill prescription, instead, choosing to administer reduced form of adult dose to child – ultimately resulting in child’s hospitalization for increased seizure activity, father regularly smoked in presence of child and his oxygen tanks, and there was evidence that father had been co-sleeping with child, which placed child at great risk of serious bodily injury or death due to child’s fragile state and father’s drug abuse issues. In re Taylor H., 5/22/13, ES, Frierson, 11 pages.
http://www.tncourts.gov/sites/default/files/taylorh.pdf

CIVIL PROCEDURE: One-year statute of limitation in suit by inmate against prison’s medical staff for failure to properly diagnose and treat him began to run on 4/9/11, day after he was diagnosed with cardiac arrhythmia; even assuming arguendo that trial court should have allowed plaintiff opportunity to amend complaint to comply with mandates of TCA 29-26-121, adding 120 days to end of initial statutory period would only extend limitations period to 8/6/12, 120 days from 4/9/12, and suit, filed on 8/9/12 was not timely. Spates v. Howell, 5/16/13, WS, Stafford, 10 pages.
http://www.tncourts.gov/sites/default/files/spatestopn.pdf

CIVIL PROCEDURE: In suit by former part-time Shelby County employees, claiming they were wrongfully excluded from Shelby County’s retirement plan, causes of action accrued when plaintiffs discovered their injury – that they were not included in retirement system; trial court properly found plaintiffs’ declaratory judgment action and 42 USC 1983 claims time-barred and properly granted county summary judgment. Bailey v. Shelby County, 5/16/13, WS, Farmer, 17 pages.
http://www.tncourts.gov/sites/default/files/baileydarmyopn.pdf

CONSTITUTIONAL LAW: TCA 39-17-1307(a)(1), which restricts carrying of firearms by making it misdemeanor for person to carry, with intent to go armed, firearm, knife with blade length exceeding four inches, or club, is valid regulation of carrying of firearms that does not contravene either Second Amendment or Tenn. Const. Art. I, Sec. 26; right of “citizens to use arms in defense of hearth and home” is core right under Second Amendment, and TCA 39-17-1307(a)(1) is not prohibition on possession of firearms in home or even genuine prohibition on carrying of firearms in general, as there are numerous defenses to law. Embody v. Cooper, 5/22/13, ES at Nashville, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/embodyl_opn.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: Trial judge properly denied defendant’s motion to suppress when officer had reasonable suspicion to stop defendant ’s vehicle based on fact that officer approached defendant in public place after seeing defendant drive vehicle, officer requested driver’s license after defendant agreed to speak with officer, and thereafter detained defendant after he could not produce driver ’s license; officer was justified in approaching defendant and asking for some sort of identification or his driver’s license after defendant agreed to speak with officer, in spite of fact that officer was motivated by his desire to investigate possible drug transaction; police-citizen encounters do not become “seizures” simply because citizens may feel inherent social pressure to cooperate with police. State v. Hughes-Mabry, 5/16/13, Knoxville, Thomas, 24 pages.
http://www.tncourts.gov/sites/default/files/hughes-mabrystevenoopn.pdf

EVIDENCE: Recording of victim’s forensic interview is admissible as prior consistent statement when victim’s credibility is attacked – whether attack is successful or unsuccessful – by defendant’s pursuit of theme throughout trial that victim “had been programmed to recite litany of allegations against the defendant.” State v. Brown, 5/23/13, Nashville, Page, 10 pages.
http://www.tncourts.gov/sites/default/files/brownwillieearljr.pdf

EVIDENCE: In aggravated sexual battery case, trial judge did not err in allowing minor victim to testify through anatomical drawings rather than verbal testimony, which permitted prosecutor to lead victim; trial court can allow leading questions of child sex offense victims on direct examination when necessary to fully develop witness’s testimony. State v. Fitzpatrick, 5/20/13, Nashville, Ogle, 12 pages.
http://www.tncourts.gov/sites/default/files/fitzpatrickgeraldopn.pdf

CRIMINAL SENTENCING: Defendant was properly ordered, as special condition of probation, to petition trial court if she wished to continue participation in her Suboxone treatment program six months past sentencing date when special condition of probation was clearly meant to be rehabilitative, not punitive, and trial court was properly concerned that defendant had been in Suboxone treatment program for five years, she had been convicted of selling and delivering very pills that she was receiving from that program, and she admitted that she was not using more than two-thirds of pills prescribed to her by physician monitoring her treatment program, and those extra pills could easily be subject to illegal sale, delivery, or other abuse by defendant. State v. Davis, 5/22/13, Knoxville, Craft, 6 pages.
http://www.tncourts.gov/sites/default/files/davisopn_0.pdf

PUBLIC CHAPTERS TORTS: Punitive damages may be awarded against defendant based on vicarious liability for acts or omissions of agent or employee only if finder of fact determines by special verdict based on clear and convincing evidence one of three circumstances. 2013 PC 224, effective 7/1/13, 2 pages.
http://www.tn.gov/sos/acts/108/pub/pc0224.pdf

COMMERCIAL LAW: Physician may issue physician orders for scope of treatment for patient with whom physician has bona fide physician-patient relationship under certain conditions, instead of “universal do not resuscitate order.” 2013 PC 254, effective 7/1/13, 6 pages.
http://www.tn.gov/sos/acts/108/pub/pc0254.pdf

SIXTH CIRCUIT COURT OF APPEALS EMPLOYMENT: Section 2412(d) of Equal Access to Justice Act (EAJA), which requires award of attorney fees to prevailing private party “except as otherwise specifically provided by statute,” unless court finds that pos ition of United States was “substantially justified” or that special circumstances make award unjust, applies to actions brought by EEOC under Age Discrimination in Employment Act (ADEA); in case in which EEOC appealed district court’s order granting partial award of attorney fees and costs to defendant, pursuant to EAJA, case alleging violation of ADEA is remanded to assess whether EEOC’s position was, as whole, substantially justified. Equal Employment Opportunity Commission v. Memphis Health Center Inc., 5/17/13, Clay, concurrence by White, 22 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0498n-06.pdf

EMPLOYMENT: Whether assessing claim under Gossett or McDonnell Douglas, district court properly granted summary judgment to defendant employer on plaintiff’s Tennessee common-law retaliatory discharge claim when plaintiff failed to produce evidence to establish that her report to Department of Children’s Services (DCS) was substantial factor in defendant’s decision to discharge her as decision to fire plaintiff was made before she made her report to DCS. Cobb v. Keystone Memphis LLC, 5/20/13, Boggs, 14 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/13a0501n-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 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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