TAM Bytes, May 4th, 2015
Slip and fall on "curb and step" in parking garage, amount of father's deposits to his personal bank account as best evidence of his actual income for child support purposes, whether mandatory blood draw statute dispenses with warrant requirement, and more from Tennessee appellate courts.
Content
TAM-BYTES
May 4, 2015
Vol. 18, No. 18
2015 TAM CLE CALENDAR
Webinars
“E-Discovery in Tennessee: Where We Are and Where We Are Going,” 60minute webinar presented by Russell Taber, with Riley, Warnock & Jacobson
in Nashville, on Wednesday, May 27, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Follow the Money: Finding Applicable Insurance and Collectible Assets in
Auto Injury Cases in Tennessee,” 60-minute webinar presented by Burke
Keaty, with the Law Offices of John Day in Brentwood, on Wednesday, May 27,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Probate Litigation in Tennessee: Hot Topics and Recent Developments,” 60minute webinar presented by Rebecca Blair, with The Blair Law Firm in
Brentwood, on Thursday, May 28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Change of Custody in Tennessee: Parental Relocation and Other PostDivorce Issues,” 60-minute audio conference presented by Kevin Shepherd,
Maryville attorney, on Thursday, June 4, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Affordable Care Act: Impact on Damages in Tennessee,” 60-minute webinar
presented by Steven Fuller, Brentwood attorney, on Tuesday, June 9, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Tennessee Commercial and Residential Leases: Key Provisions, Tenant
Default, and More,” 60-minute webinar presented by Joshua Kahane,
Memphis attorney, on Wednesday, June 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Qualifying for TennCare and VA Benefits: Use of Irrevocable Trusts,” 60minute webinar presented by Alex M. Taylor, with Kennerley, Montgomery &
Finley in Knoxville, on Wednesday, June24, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
“Life Care Plans: How to Defend a Claim for Future Medical Expenses,” 60minute webinar presented by John Alexander, with Rainey, Kizer, Reviere &
Bell in Jackson, on Thursday, June 25, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
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 WEEK’S TAM-Bytes
Court of Appeals reverses grant of summary judgment to defendants
in suit by plaintiff who fell on “curb and step down” in parking
garage;
Court of Appeals says that parent’s choice to continue to use drugs when
parent is prohibited from visiting child until passage of drug test constitutes
willful failure to visit child sufficient to support termination of parent’s
parental rights;
Court of Appeals affirms trial court’s consideration and acceptance of
amount of father’s deposits to his personal bank account as best evidence of
his actual income for child support purposes;
Court of Appeals rules that when claimant filed her notice of appeal
with Claims Commission 90 days after notice of denial of her claim,
Claims Commission erred in applying TRCP 6.05 to enlarge time for
filing notice of appeal by three days;
Court of Appeals holds that when school board failed to comply with
Teacher Tenure Act by holding hearing within 30 days of demand by
teacher after she received notice of charges against her, proper
remedy is award of back pay for number of days over 30 that teacher
was suspended without pay and without hearing following her
demand for hearing;
Court of Criminal Appeals, in affirming trial court’s grant of motion to
suppress evidence of defendant’s blood alcohol content in DUI case, says
TCA 55-10-406(f)(1), mandatory blood draw statute, is not unconstitutional
and does not dispense with warrant requirement; and
Sixth Circuit says district court erred in denying defendant’s motion to
suppress based on improper pre-Miranda questioning by law enforcement
officers.
WORKERS’ COMP APPEALS PANEL
WORKERS’ COMPENSATION: Evidence did not preponderate against
trial court’s finding that employee, who was injured on 1/6/11, did not have
meaningful return to work, and hence, award of permanent partial disability
was not limited to 1.5 times employee’s impairment rating; although
employer emphasized that doctor returned employee to work in 8/11 with
no restrictions and that employee was able to work for 18 months after his
surgery, trial court accredited employee’s testimony that he had severe pain,
that pain made his work for employer more difficult to complete, and that
pain interfered with his ability to sleep and engage in normal activities;
although employer argued that employee voluntarily resigned to take job
that paid more money, trial court accredited employee’s testimony that he
took new job not because it paid more money but instead because it did not
require overhead lifting or climbing and would not result in as much pain.
Harris v. Mr. Bult’s Inc., 4/23/15, Knoxville, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/harrisaopnjud.pdf
WORKERS’ COMPENSATION: When employee was injured in 4/05,
he returned to his pre-injury job and settled his claim for permanent
disability benefits in 11/07, he was terminated in 5/10, minutes of meeting
of board of directors of employer (nonprofit corporation) states that
employee was terminated without cause, employee then sought
reconsideration of workers’ compensation settlement, and employer argued
that employee had been terminated for misconduct, trial court properly
granted employee’s motion for partial summary judgment as to employee’s
eligibility for reconsideration; trial court properly held that minutes of
employer’s board meeting of 5/20/10 were conclusive evidence of reason
for employee’s termination, and parol testimony of some members of board
did not create genuine issue of fact on subject. Hensley v. Cocke Farmers
Cooperative, 4/27/15, Knoxville, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/hensleyjopnjud.pdf
COURT OF APPEALS
TORTS: Trial court erred in granting summary judgment to defendants,
Central Parking System of Tennessee, Inc. and Fort Sanders Regional
Medical Center, in suit by plaintiff who fell on “curb and step down” in
parking garage; reasonable person could conclude that plaintiff was keeping
careful lookout by “looking down where she was walking” and that despite
her doing so, “curb and step down” were not open and obvious, and hence,
there is genuine issue of material fact regarding whether plaintiff could
have or should have seen “curb and step down” and whether any fault
attributable to plaintiff is greater than fault of defendants. Walden v.
Central Parking System of Tennessee Inc., 4/27/15, ES, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/waldenjopn.pdf
COMMERCIAL LAW: When plaintiff averred that he had entered into
contract with hospital to pay $6,720 for bariatric surgical procedure, due to
complications following surgery, plaintiff required second surgery,
incurring additional charges, and plaintiff filed suit alleging negligence,
breach of contract, money had and received, and unjust enrichment,
plaintiff was precluded from bringing claim under Tennessee Medical
Malpractice Act (TMMA) or Governmental Tort Liability Act (GTLA) –
plaintiff did not comply with TMMA requirements, and suit was
commenced outside GTLA’s one-year statute of limitation – but plaintiff
presented separate claim for breach of contract; gravamen of plaintiff’s
contract claims was breach of contract, not injury to property, and hence,
six-year statute of limitation applied; plaintiff failed to allege facts
sufficient to state breach of enforceable contract claim upon which relief
could be granted; trial court erred by simultaneously denying plaintiff’s
motion to alter or amend dismissal order and granting plaintiff’s motion to
amend complaint as dismissal of complaint and leave to amend complaint
procedurally cannot stand together; because dismissal of breach of contract
claim is without prejudice, plaintiff could file new action alleging breach of
contract, provided that he does so within six-year statute of limitation.
Kaddoura v. Chattanooga-Hamilton County Hospital Authority, 4/27/15,
ES, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/kaddoura_opinion_final.pdf
COMMERCIAL LAW: When hospital instituted review of orthopedic
surgeon’s removal of spinal hardware from patients within one year of
implantation, review resulted in peer review proceeding under hospital’s
bylaws and eventual revocation of doctor’s surgical privileges, and doctor
filed suit for breach of contract, defamation, common law and statutory
disparagement, and intentional interference with business relationships
arising out of revocation of his surgical privileges, trial court properly
dismissed contract claims on ground of waiver when doctor’s actions
demonstrated unequivocal and decisive intent to abandon hearing process
and relinquish his rights under bylaws; Health Care Quality Improvement
Act (HCQIA) includes procedure for practitioners who wish to challenge
accuracy of reports made to National Practitioner Data Bank (NPDB), but
practitioner is not required to avail himself or herself of administrative
process in order to dispute accuracy of NPDB report, and trial court erred in
so holding and granting TRCP 12.02(1) motion to dismiss; doctor failed to
produce evidence that would create genuine issue of fact as to falsity of
statements in hospital’s NPDB report, and hence, trial court erred in
denying hospital’s motion for summary judgment; doctor did not produce
evidence that hospital was motivated by something other than reasonable
belief that its action would further quality health care, and hence, there was
no triable issue of fact as to motive for proceeding presented by record, and
hospital was entitled to benefit of presumption that it met standards of 42
USC 11112 of HCQIA. McCord v. HCA Health Services of Tennessee
Inc., 4/27/15, MS, Dinkins, 22 pages.
http://www.tncourts.gov/sites/default/files/mccorddavid.opn2_.pdf
PROPERTY: When mortgagee, after foreclosing on three lots securing
three loans, sought to satisfy outstanding deficiency by foreclosing on
debtors’ family-owned property that additionally secured these obligations,
and to prevent impending foreclosure, debtors commenced suit contending
they are not liable for deficiency because properties sold at foreclosure for
amount materially less than their fair market value, trial court did not err in
granting mortgagee’s TRCP 41.02 motion to dismiss; debtors failed to rebut
presumption that foreclosure price was equal to fair market value of
properties when debtor merely concluded that each lot should be valued
based on $93 per square foot but did not explain why value of each home
should be based on same square foot value when they were sold at
foreclosure several months apart, and two had never been occupied while
one had been rented and lived in for year, and subsequent sales of
properties upon which debtors relied occurred three and seven months,
respectively, after foreclosure sales; trial court did not abuse discretion in
awarding mortgagee $55,000 in attorney fees and expenses when
mortgagee viewed reduction of its fee from $93,415 as excessive and when
debtors deemed amount awarded by trial court as excessive. Halliman v.
Heritage Bank, 4/30/15, MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/hallimanrobert.opn_.pdf
PROPERTY: In case in which parties (Roscoe and Dorothy), although not
legally married, held themselves out as husband and wife for over 41 years,
about year before Roscoe’s death, Roscoe and Dorothy executed individual
powers of attorney granting Roscoe’s son from earlier marriage (Sam)
authority and control over their financial and medical decisions, two days
before Roscoe’s death, Sam withdrew over $600,000 from accounts he held
jointly with Roscoe and Dorothy, and Dorothy filed suit against Sam,
alleging undue influence, trial court properly found that Sam had exercised
undue influence over both Roscoe and Dorothy and had committed
conversion and fraud; trial court erred in awarding attorney fees against
constructive trust created by trial court for use and benefit of Dorothy,
which trust contains all of assets of Roscoe’s estate, when, although Sam’s
conduct in wrongfully converting funds in bank accounts was “disturbing”
and “egregious,” there was no evidence that he was guilty of intentional
misrepresentation; finding of conversion does not necessarily support award
of attorney fees. Lewis v. Lewis, 4/27/15, ES, Susano, 25 pages.
http://www.tncourts.gov/sites/default/files/lewis_v_lewis_2015-04-27.pdf
FAMILY LAW: Trial court erred in adopting parenting schedule that gives
father only limited periodic weekends for visitation with his 1-year-old
child when there was no evidence supporting finding that either parent is
better suited or situated to have substantially more parenting time than other
and no evidence supporting parenting schedule that substantially limits
father’s parenting time during months of September through May but give
him equal parenting time (alternating weeks) in June, July, and August;
given fact that General Assembly has established aspirational goal for
courts to maximize each parent’s participation in life of child, trial court’s
decision is reversed, and case is remanded with instructions for trial court to
establish parenting schedule that maximizes each parent’s participation in
life of child. Gooding v. Gooding, 4/29/15, MS, Clement, 13 pages.
http://www.tncourts.gov/sites/default/files/gooding.timothy.opn_.pdf
FAMILY LAW: Parent’s choice to continue to use drugs when parent is
prohibited from visiting child until passage of drug test constitutes willful
failure to visit child for purpose of terminating that individual’s parental
rights. In re Roger T., 4/27/15, WS, Goldin, 17 pages.
http://www.tncourts.gov/sites/default/files/rogertopn.pdf
FAMILY LAW: Trial court did not err by considering and accepting
amount of father’s deposits to his personal bank account as best evidence of
his actual income for child support purposes; trial court erred in failing to
consider amount of self-employment taxes father paid when calculating
father’s child support obligation. Sellers v. Walker, 4/29/15, ES, Frierson,
14 pages.
http://www.tncourts.gov/sites/default/files/sellers.final_.pdf
FAMILY LAW: In case in which husband filed petition seeking to reduce
or terminate his alimony obligation to wife – at time of divorce, husband
was ordered to pay wife alimony in future in varying amounts for 12 years
(until 2017), when wife would become owner of two office buildings that
would produce income for her ongoing support – based on fact that wife
was cohabitating with another man (Smith), evidence did not preponderate
against trial court’s conclusion that wife was not cohabitating with Smith
when, although husband presented evidence that wife may have spent more
than six days at time at Smith’s house in Florida at different points in time,
this alone was insufficient to prove that wife was cohabitating with Smith,
and there was no proof that wife supported Smith or that Smith supported
wife; obligor spouse cannot rely on TCA 36-5-121(f)(2)(B) to terminate or
suspend alimony payments if alleged cohabitation ceased before
modification petition was tried – wife and Smith both testified that they had
ended their relationship few weeks before end of trial. Wiser v. Wiser,
4/30/15, MS, Bennett, 17 pages.
http://www.tncourts.gov/sites/default/files/wiserr.opn_.pdf
FAMILY LAW: Marital debt is subject to equitable division in same
manner as marital assets, and debts incurred by either or both spouses
during course of marriage are properly classified as marital, including debts
incurred up to date of final divorce hearing. Kibbe v. Kibbe, 4/28/15, ES,
McClarty, 15 pages.
http://www.tncourts.gov/sites/default/files/kibbecmopn.pdf
CIVIL PROCEDURE: When claimant filed her notice of appeal with
Claims Commission 90 days after notice of denial of her claim, Claims
Commission erred in applying TRCP 6.05 to enlarge time by three days;
TRCP 6.05 is applicable only in those situations when party is required to
do some act or take some proceedings within prescribed period of time after
service of notice upon party; if act is predicated on some other event, like
entry of final judgment or order, then rule does not apply; as set out in TCA
9-8-402(c), claimant was required to file her notice of appeal of denial of
her claim within 90 days after date of notice of denial as opposed to after
service of that notice; TRCP 6.05 expands statutory time period only in
those cases when that time period is triggered by “the service of a notice,”
as opposed to mere existence of notice. McGinnis v. State, 4/30/15, WS,
Armstrong, dissent by Stafford, 7 pages.
http://www.tncourts.gov/sites/default/files/mcginnisbarbaraopn.pdf
http://www.tncourts.gov/sites/default/files/mcginnisdis.pdf
GOVERNMENT: When Kennedy with Rutherford County Sheriff’s Office
began wrestling program under auspices of Sheriff’s Athletic Fellowship &
Enrichment (S.A.F.E.) program, program moved to Blackman Middle
School, Rutherford County Board of Education approved Kennedy’s request
to construct 60-foot by 100-foot metal building adjacent to school’s gym,
Rutherford Wrestling Club (Club) used building until fall 2010, Arnold was
elected sheriff in 8/10, day after assuming office, Arnold informed Kennedy
that, if he wished to remain with Sheriff’s Office, he would have to accept
reassignment, Kennedy resigned from sheriff’s office, Arnold, accompanied
by sheriff’s deputies and group of inmates, removed wrestling mats,
equipment, and other items from wrestling program building on 10/29/10,
Board of Education presented Club with Use of Facilities Form, which
Kennedy refused to sign, after being denied access to building, Club filed
suit against Arnold and Rutherford County, and trial court concluded that
Club was booster-club-type organization, that funds it raised were spent on
behalf of Sheriff’s Department’s Wrestling Club and that Club retained no
right of ownership or interest in any of personal property in question, i.e.,
contents of building located at Blackman Middle School, evidence did not
preponderate against trial court’s findings in regard to ownership of building
and personal property; trial court correctly declined to establish resulting
trust in favor of Club when evidence was not clear and convincing that
parties intended for Club to own building. Rutherford Wrestling Club Inc.
v. Arnold, 4/30/15, MS, McBrayer, 13 pages.
http://www.tncourts.gov/sites/default/files/rutherfordwrestlingclub.opn_.pdf
GOVERNMENT: When tenured teacher, after receiving notice of charges
pending against her, demanded hearing before school board on 10/18/05,
school board was required by Teacher Tenure Act (Act) to conduct hearing
on charges within 30 days of teacher’s demand, school board did not hold
hearing until 11/06, and trial court held that because delay did not affect
outcome of hearing, school board’s failure to comply with Act was
harmless and that teacher was not entitled to relief, teacher is entitled to
award of back pay for number of days over 30 that she was suspended
without pay and without hearing following her demand for hearing; timely
hearing requirement in TCA 49-5-512(a)(2) is directory rather than
mandatory; although some sanction for board’s noncompliance with timely
hearing requirement is necessary, subsequent substantive actions of board
are not rendered void; proper remedy is award of back pay for additional
days that teacher was suspended without pay and without hearing in
violation of Act. Emory v. Memphis City Schools Board of Education,
4/29/15, WS at Memphis, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/emoryrogelynnopn.pdf
GOVERNMENT: Even if members of public body engage in conduct that
violates Open Meetings Act, action of public body will not be deemed void
if, in interim, there was “new and substantial reconsideration of the issues
involved, in which the public is afforded ample opportunity to know the
facts and to be heard with reference to the matters at issue.” Flat Iron
Partners LP v. City of Covington, 4/30/15, WS, Armstrong, 20 pages.
http://www.tncourts.gov/sites/default/files/flatironpartnersopn.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL PROCEDURE: Evidence was not sufficient to convict defendant of
16 of 18 counts of aggravated rape (Counts 2 through 17) when state failed to
make proper election of offenses for those counts – although defendant generally
admitted to anally penetrating victim with his penis 15 to 45 times between 5/12
and 8/12, he provided dates only for Counts 1 and 18, state did not question young
victim about any specific events, dates, locations, or conduct by defendant relative
to incidents, and although state’s theory was that incidents must have occurred on
dates when victim’s mother worked and when defendant did not work and was
home with victim, no evidence was presented that any prohibited conduct
occurred on or around dates listed in Counts 2 through 17; evidence was not
sufficient to convict defendant of aggravated rape in Count 1 when trial court’s
instruction to jury relative to Count 1 shows that only evidence relied upon by
state was defendant’s statement to police, and conviction cannot be based solely
on defendant’s confession; although trial judge failed to require state to make
election of aggravated rape offense relative to Count 18, error was harmless when
proof showed that defendant penetrated victim’s anus on 8/1/12 and only one
incident was alleged to have occurred on that date, and as such, it would constitute
speculation to conclude that jury was not unanimous in determining that defendant
penetrated victim’s anus with his penis on 8/1/12. State v. Espinosa, 4/29/15,
Nashville, Montgomery, 22 pages.
http://www.tncourts.gov/sites/default/files/espinosaloretoopnb.pdf
CRIMINAL PROCEDURE: In DUI case, trial judge properly granted
defendant’s motion to suppress results of defendant’s blood alcohol content when
exigent circumstances did not exist to justify warrantless blood draw – officers
were called to scene of three-car accident, defendant was not injured in accident or
transported to hospital for any reason following accident, defendant remained on
scene for approximately 1.5 hours while officers investigated him for DUI, after
being transported to police station, defendant waited another 30 minutes for nurse
to arrive and draw his blood, while officer testified that it usually takes him 2.5
hours to obtain warrant, he failed to explain why he was unable to obtain warrant
during nearly 2.5-hour delay between incident and blood draw, and officer failed
to identify any factors that would have delayed process of obtaining warrant and
instead relied solely on his belief that no warrant was required to conduct
mandatory blood draw pursuant to TCA 55-10-406(f)(1); TCA 55-10-406(f)(1),
mandatory blood draw statute, is not unconstitutional and does not dispense with
warrant requirement – although statute makes no mention of necessity of warrant,
statute’s silence in this regard should not be read as dispensation of warrant
requirement. State v. Brown, 4/30/15, Jackson, McMullen, Easter concurred in
results only, 11 pages.
http://www.tncourts.gov/sites/default/files/brownmelvinopn.pdf
SIXTH CIRCUIT COURT OF APPEALS
INSURANCE: When home was damaged by fire, insurer paid mortgage
balance to mortgagee and then filed suit against mortgagors to recover
payment, mortgagors filed counterclaim seeking payment for value of
property in excess of outstanding mortgage, as well as personal property,
and jury rendered verdict in favor of mortgagors, district court did not err
by refusing to instruct jury that mortgagors had to prove that they did not
cause fire as insurer bore burden of proof regarding its arson defense;
district court did not err in denying insurer judgment as matter of law under
FRCP 50 on whether retaining wall and driveway were covered by “other
structures” provision of policy when reasonable jurors could differ on
whether there was sufficient space between dwelling and driveway or
retaining wall to qualify either item as part of “other structures”; in holding
that dwelling was constructive total loss, justifying demolition of property
rather than repair, district court erred by invoking constructive loss
doctrine, but error was harmless because, applying identity-and-character
test, demolition order was valid, dwelling would not maintain its identity
and character after being razed, and, thus, property was actual total loss.
Cincinnati Insurance Co. v. Banks, 4/28/15, Batchelder, 20 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0308n-06.pdf
INSURANCE: In multi-count action against Chicago Title Insurance
Company alleging that Chicago Title’s fee structure associated with “title
searches” in Shelby County violates Tennessee law, trial court properly
granted Chicago Title summary judgment; under Rule 0780-01-12-.02,
regardless of name used, if Chicago Title produces property’s “history of
title” “for a given period of time,” consisting of “listing, summary, copy or
some combination thereof of documents or matters,” and these “documents
or matters” are deemed to impart “constructive notice under” Tennessee
law, it may charge separately for this compilation as it constitutes “abstract
of title”; although Chicago Title called report for which separate $300 fee
was charged “title search,” not “abstract of title,” it nonetheless falls within
Tennessee regulation’s definition of “abstract of title.” S&M Homes LLC v.
Chicago Title Insurance Co., 5/1/15, White, 13 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0311n-06.pdf
CRIMINAL PROCEDURE: District court’s decision granting petitioner
habeas corpus relief on basis of ineffective assistance of trial counsel is
reversed; district court failed to apply appropriate degree of deference to
state courts’ decisions as question under Strickland is not what reviewing
judge would have done in hindsight, or even what attorney himself would
have done in hindsight, but whether attorney’s behavior at trial was so
objectively unreasonable that it overcomes strong presumption that
counsel’s conduct falls within wide range of reasonable professional
assistance; Tennessee Court of Criminal Appeals accurately stated
Strickland standard as governing law and then reasonably determined that
introducing more “evidence of prior consistent statements” through
getaway driver’s attorney (Wing) would not have significantly improved
credibility of getaway driver (Schultz); defense’s best strategy was to argue
that Schultz’s version of events – in which petitioner was not involved in
shooting – was true, most compelling evidence for this version of events
was Schultz’s own live first-person account of how he killed victims, and
petitioner’s trial counsel attempted to rehabilitate Schultz’s credibility by
playing for jury video of Schultz’s prior consistent confession to police.
Tyler v. Ray, 4/27/15, Siler, concurrence by Batchelder, 14 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0304n-06.pdf
CRIMINAL PROCEDURE: In case in which defendant was charged with two
counts of being felon in possession of firearm, district court erred in denying
defendant’s motion to suppress based on improper pre-Miranda questioning by
law enforcement officers; police officer’s interrogation strategy of eliciting preMiranda statements, Mirandizing suspect “midstream,” and then asking similar
questions so suspect will restate pre-Miranda admissions is improper; timing and
circumstances of defendant’s questioning suggest that officer was attempting to
induce defendant to admit pre-Miranda that any weapons in car belonged to him –
officer knew that defendant was recently found in possession of firearms, knew
defendant’s criminal history, which indicted he was felon, and knew that
defendant was sitting in passenger seat of car, suggesting that car was not his, with
this knowledge, officer began questioning defendant about presence of weapons in
car and whether his fingerprints would be on any weapons found just seconds
after defendant was unexpectedly surrounded by between 10 to 20 armed law
enforcement agents, arrested, taken to ground, and handcuffed, and instead of
transporting defendant to police station, officer gave defendant Miranda warning
and immediately began asking him about weapon again, getting him to repeat his
prior admission; when prior statement is coerced, time that passes between
confessions, change in place of interrogations, and change in identity of
interrogators all bear on whether that coercion has carried over into second
confession; defendant’s pre-Miranda and post-Miranda statements should have all
been suppressed. United States v. Ashmore, 5/1/15, Donald, 22 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0321n-06.pdf
COURT OF WORKERS’ COMPENSATION CLAIMS
WORKERS’ COMPENSATION: In case in which employee contended
that he suffered hernia while lifting heavy pieces of wood in course and
scope of his employment, employee’s request to select new treating
physician selected from panel is denied when employee selected doctor (Dr.
Adcock) as authorized treating physician instead of waiting for provision of
panel so that he would receive immediate treatment; employee’s request for
additional medical and temporary disability benefits is denied when
employee failed to rebut Adcock’s adverse causation opinion with opinion
of another physician. Careathers v. Cardin Forest Products LLC, 1/23/15,
Wyatt, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1048&context=utk_workerscomp
WORKERS’ COMPENSATION: When employee submitted resignation
letter to employer advising that he would be “leaving the maintenance
positon at Sunrise Village Apartments on September 15, 2014,” employee
fell and injured his back while working on 8/12/14, employer accepted
workers’ comp claim and provided medical care, employee advised
employer that he had job offer but, due to his back injury, he did not believe
he could accept offer and expressed desire to retain his position at
employer, employer refused to retain employee and he ceased working for
employer on 9/15/14, and employee sought temporary disability benefits for
period he last worked for employer, from 9/15/14 through date of hearing,
employee is not entitled to temporary disability benefits for requested time
frame; employer is not required to return employee to work, postacceptance of his resignation, merely because he suffered workplace injury;
proof shows by preponderance of evidence that employee was able to, and
in fact did, continue working at employer for two weeks within restrictions
at issue, employee had ability to work, employer had light duty available
for employee as of not only 9/15/14 but also thereafter, and hence, even if
employee had not voluntarily resigned, he would not be entitled to
temporary disability benefits for requested time frame. Anderson v.
Hallmark Management Inc., 1/22/15, Phillips, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1049&context=utk_workerscomp
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
May 4, 2015
Vol. 18, No. 18
2015 TAM CLE CALENDAR
Webinars
“E-Discovery in Tennessee: Where We Are and Where We Are Going,” 60minute webinar presented by Russell Taber, with Riley, Warnock & Jacobson
in Nashville, on Wednesday, May 27, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Follow the Money: Finding Applicable Insurance and Collectible Assets in
Auto Injury Cases in Tennessee,” 60-minute webinar presented by Burke
Keaty, with the Law Offices of John Day in Brentwood, on Wednesday, May 27,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Probate Litigation in Tennessee: Hot Topics and Recent Developments,” 60minute webinar presented by Rebecca Blair, with The Blair Law Firm in
Brentwood, on Thursday, May 28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Change of Custody in Tennessee: Parental Relocation and Other PostDivorce Issues,” 60-minute audio conference presented by Kevin Shepherd,
Maryville attorney, on Thursday, June 4, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Affordable Care Act: Impact on Damages in Tennessee,” 60-minute webinar
presented by Steven Fuller, Brentwood attorney, on Tuesday, June 9, at 10
a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Tennessee Commercial and Residential Leases: Key Provisions, Tenant
Default, and More,” 60-minute webinar presented by Joshua Kahane,
Memphis attorney, on Wednesday, June 9, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Qualifying for TennCare and VA Benefits: Use of Irrevocable Trusts,” 60minute webinar presented by Alex M. Taylor, with Kennerley, Montgomery &
Finley in Knoxville, on Wednesday, June24, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
“Life Care Plans: How to Defend a Claim for Future Medical Expenses,” 60minute webinar presented by John Alexander, with Rainey, Kizer, Reviere &
Bell in Jackson, on Thursday, June 25, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
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 WEEK’S TAM-Bytes
Court of Appeals reverses grant of summary judgment to defendants
in suit by plaintiff who fell on “curb and step down” in parking
garage;
Court of Appeals says that parent’s choice to continue to use drugs when
parent is prohibited from visiting child until passage of drug test constitutes
willful failure to visit child sufficient to support termination of parent’s
parental rights;
Court of Appeals affirms trial court’s consideration and acceptance of
amount of father’s deposits to his personal bank account as best evidence of
his actual income for child support purposes;
Court of Appeals rules that when claimant filed her notice of appeal
with Claims Commission 90 days after notice of denial of her claim,
Claims Commission erred in applying TRCP 6.05 to enlarge time for
filing notice of appeal by three days;
Court of Appeals holds that when school board failed to comply with
Teacher Tenure Act by holding hearing within 30 days of demand by
teacher after she received notice of charges against her, proper
remedy is award of back pay for number of days over 30 that teacher
was suspended without pay and without hearing following her
demand for hearing;
Court of Criminal Appeals, in affirming trial court’s grant of motion to
suppress evidence of defendant’s blood alcohol content in DUI case, says
TCA 55-10-406(f)(1), mandatory blood draw statute, is not unconstitutional
and does not dispense with warrant requirement; and
Sixth Circuit says district court erred in denying defendant’s motion to
suppress based on improper pre-Miranda questioning by law enforcement
officers.
WORKERS’ COMP APPEALS PANEL
WORKERS’ COMPENSATION: Evidence did not preponderate against
trial court’s finding that employee, who was injured on 1/6/11, did not have
meaningful return to work, and hence, award of permanent partial disability
was not limited to 1.5 times employee’s impairment rating; although
employer emphasized that doctor returned employee to work in 8/11 with
no restrictions and that employee was able to work for 18 months after his
surgery, trial court accredited employee’s testimony that he had severe pain,
that pain made his work for employer more difficult to complete, and that
pain interfered with his ability to sleep and engage in normal activities;
although employer argued that employee voluntarily resigned to take job
that paid more money, trial court accredited employee’s testimony that he
took new job not because it paid more money but instead because it did not
require overhead lifting or climbing and would not result in as much pain.
Harris v. Mr. Bult’s Inc., 4/23/15, Knoxville, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/harrisaopnjud.pdf
WORKERS’ COMPENSATION: When employee was injured in 4/05,
he returned to his pre-injury job and settled his claim for permanent
disability benefits in 11/07, he was terminated in 5/10, minutes of meeting
of board of directors of employer (nonprofit corporation) states that
employee was terminated without cause, employee then sought
reconsideration of workers’ compensation settlement, and employer argued
that employee had been terminated for misconduct, trial court properly
granted employee’s motion for partial summary judgment as to employee’s
eligibility for reconsideration; trial court properly held that minutes of
employer’s board meeting of 5/20/10 were conclusive evidence of reason
for employee’s termination, and parol testimony of some members of board
did not create genuine issue of fact on subject. Hensley v. Cocke Farmers
Cooperative, 4/27/15, Knoxville, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/hensleyjopnjud.pdf
COURT OF APPEALS
TORTS: Trial court erred in granting summary judgment to defendants,
Central Parking System of Tennessee, Inc. and Fort Sanders Regional
Medical Center, in suit by plaintiff who fell on “curb and step down” in
parking garage; reasonable person could conclude that plaintiff was keeping
careful lookout by “looking down where she was walking” and that despite
her doing so, “curb and step down” were not open and obvious, and hence,
there is genuine issue of material fact regarding whether plaintiff could
have or should have seen “curb and step down” and whether any fault
attributable to plaintiff is greater than fault of defendants. Walden v.
Central Parking System of Tennessee Inc., 4/27/15, ES, Swiney, 6 pages.
http://www.tncourts.gov/sites/default/files/waldenjopn.pdf
COMMERCIAL LAW: When plaintiff averred that he had entered into
contract with hospital to pay $6,720 for bariatric surgical procedure, due to
complications following surgery, plaintiff required second surgery,
incurring additional charges, and plaintiff filed suit alleging negligence,
breach of contract, money had and received, and unjust enrichment,
plaintiff was precluded from bringing claim under Tennessee Medical
Malpractice Act (TMMA) or Governmental Tort Liability Act (GTLA) –
plaintiff did not comply with TMMA requirements, and suit was
commenced outside GTLA’s one-year statute of limitation – but plaintiff
presented separate claim for breach of contract; gravamen of plaintiff’s
contract claims was breach of contract, not injury to property, and hence,
six-year statute of limitation applied; plaintiff failed to allege facts
sufficient to state breach of enforceable contract claim upon which relief
could be granted; trial court erred by simultaneously denying plaintiff’s
motion to alter or amend dismissal order and granting plaintiff’s motion to
amend complaint as dismissal of complaint and leave to amend complaint
procedurally cannot stand together; because dismissal of breach of contract
claim is without prejudice, plaintiff could file new action alleging breach of
contract, provided that he does so within six-year statute of limitation.
Kaddoura v. Chattanooga-Hamilton County Hospital Authority, 4/27/15,
ES, Frierson, 12 pages.
http://www.tncourts.gov/sites/default/files/kaddoura_opinion_final.pdf
COMMERCIAL LAW: When hospital instituted review of orthopedic
surgeon’s removal of spinal hardware from patients within one year of
implantation, review resulted in peer review proceeding under hospital’s
bylaws and eventual revocation of doctor’s surgical privileges, and doctor
filed suit for breach of contract, defamation, common law and statutory
disparagement, and intentional interference with business relationships
arising out of revocation of his surgical privileges, trial court properly
dismissed contract claims on ground of waiver when doctor’s actions
demonstrated unequivocal and decisive intent to abandon hearing process
and relinquish his rights under bylaws; Health Care Quality Improvement
Act (HCQIA) includes procedure for practitioners who wish to challenge
accuracy of reports made to National Practitioner Data Bank (NPDB), but
practitioner is not required to avail himself or herself of administrative
process in order to dispute accuracy of NPDB report, and trial court erred in
so holding and granting TRCP 12.02(1) motion to dismiss; doctor failed to
produce evidence that would create genuine issue of fact as to falsity of
statements in hospital’s NPDB report, and hence, trial court erred in
denying hospital’s motion for summary judgment; doctor did not produce
evidence that hospital was motivated by something other than reasonable
belief that its action would further quality health care, and hence, there was
no triable issue of fact as to motive for proceeding presented by record, and
hospital was entitled to benefit of presumption that it met standards of 42
USC 11112 of HCQIA. McCord v. HCA Health Services of Tennessee
Inc., 4/27/15, MS, Dinkins, 22 pages.
http://www.tncourts.gov/sites/default/files/mccorddavid.opn2_.pdf
PROPERTY: When mortgagee, after foreclosing on three lots securing
three loans, sought to satisfy outstanding deficiency by foreclosing on
debtors’ family-owned property that additionally secured these obligations,
and to prevent impending foreclosure, debtors commenced suit contending
they are not liable for deficiency because properties sold at foreclosure for
amount materially less than their fair market value, trial court did not err in
granting mortgagee’s TRCP 41.02 motion to dismiss; debtors failed to rebut
presumption that foreclosure price was equal to fair market value of
properties when debtor merely concluded that each lot should be valued
based on $93 per square foot but did not explain why value of each home
should be based on same square foot value when they were sold at
foreclosure several months apart, and two had never been occupied while
one had been rented and lived in for year, and subsequent sales of
properties upon which debtors relied occurred three and seven months,
respectively, after foreclosure sales; trial court did not abuse discretion in
awarding mortgagee $55,000 in attorney fees and expenses when
mortgagee viewed reduction of its fee from $93,415 as excessive and when
debtors deemed amount awarded by trial court as excessive. Halliman v.
Heritage Bank, 4/30/15, MS, Clement, 12 pages.
http://www.tncourts.gov/sites/default/files/hallimanrobert.opn_.pdf
PROPERTY: In case in which parties (Roscoe and Dorothy), although not
legally married, held themselves out as husband and wife for over 41 years,
about year before Roscoe’s death, Roscoe and Dorothy executed individual
powers of attorney granting Roscoe’s son from earlier marriage (Sam)
authority and control over their financial and medical decisions, two days
before Roscoe’s death, Sam withdrew over $600,000 from accounts he held
jointly with Roscoe and Dorothy, and Dorothy filed suit against Sam,
alleging undue influence, trial court properly found that Sam had exercised
undue influence over both Roscoe and Dorothy and had committed
conversion and fraud; trial court erred in awarding attorney fees against
constructive trust created by trial court for use and benefit of Dorothy,
which trust contains all of assets of Roscoe’s estate, when, although Sam’s
conduct in wrongfully converting funds in bank accounts was “disturbing”
and “egregious,” there was no evidence that he was guilty of intentional
misrepresentation; finding of conversion does not necessarily support award
of attorney fees. Lewis v. Lewis, 4/27/15, ES, Susano, 25 pages.
http://www.tncourts.gov/sites/default/files/lewis_v_lewis_2015-04-27.pdf
FAMILY LAW: Trial court erred in adopting parenting schedule that gives
father only limited periodic weekends for visitation with his 1-year-old
child when there was no evidence supporting finding that either parent is
better suited or situated to have substantially more parenting time than other
and no evidence supporting parenting schedule that substantially limits
father’s parenting time during months of September through May but give
him equal parenting time (alternating weeks) in June, July, and August;
given fact that General Assembly has established aspirational goal for
courts to maximize each parent’s participation in life of child, trial court’s
decision is reversed, and case is remanded with instructions for trial court to
establish parenting schedule that maximizes each parent’s participation in
life of child. Gooding v. Gooding, 4/29/15, MS, Clement, 13 pages.
http://www.tncourts.gov/sites/default/files/gooding.timothy.opn_.pdf
FAMILY LAW: Parent’s choice to continue to use drugs when parent is
prohibited from visiting child until passage of drug test constitutes willful
failure to visit child for purpose of terminating that individual’s parental
rights. In re Roger T., 4/27/15, WS, Goldin, 17 pages.
http://www.tncourts.gov/sites/default/files/rogertopn.pdf
FAMILY LAW: Trial court did not err by considering and accepting
amount of father’s deposits to his personal bank account as best evidence of
his actual income for child support purposes; trial court erred in failing to
consider amount of self-employment taxes father paid when calculating
father’s child support obligation. Sellers v. Walker, 4/29/15, ES, Frierson,
14 pages.
http://www.tncourts.gov/sites/default/files/sellers.final_.pdf
FAMILY LAW: In case in which husband filed petition seeking to reduce
or terminate his alimony obligation to wife – at time of divorce, husband
was ordered to pay wife alimony in future in varying amounts for 12 years
(until 2017), when wife would become owner of two office buildings that
would produce income for her ongoing support – based on fact that wife
was cohabitating with another man (Smith), evidence did not preponderate
against trial court’s conclusion that wife was not cohabitating with Smith
when, although husband presented evidence that wife may have spent more
than six days at time at Smith’s house in Florida at different points in time,
this alone was insufficient to prove that wife was cohabitating with Smith,
and there was no proof that wife supported Smith or that Smith supported
wife; obligor spouse cannot rely on TCA 36-5-121(f)(2)(B) to terminate or
suspend alimony payments if alleged cohabitation ceased before
modification petition was tried – wife and Smith both testified that they had
ended their relationship few weeks before end of trial. Wiser v. Wiser,
4/30/15, MS, Bennett, 17 pages.
http://www.tncourts.gov/sites/default/files/wiserr.opn_.pdf
FAMILY LAW: Marital debt is subject to equitable division in same
manner as marital assets, and debts incurred by either or both spouses
during course of marriage are properly classified as marital, including debts
incurred up to date of final divorce hearing. Kibbe v. Kibbe, 4/28/15, ES,
McClarty, 15 pages.
http://www.tncourts.gov/sites/default/files/kibbecmopn.pdf
CIVIL PROCEDURE: When claimant filed her notice of appeal with
Claims Commission 90 days after notice of denial of her claim, Claims
Commission erred in applying TRCP 6.05 to enlarge time by three days;
TRCP 6.05 is applicable only in those situations when party is required to
do some act or take some proceedings within prescribed period of time after
service of notice upon party; if act is predicated on some other event, like
entry of final judgment or order, then rule does not apply; as set out in TCA
9-8-402(c), claimant was required to file her notice of appeal of denial of
her claim within 90 days after date of notice of denial as opposed to after
service of that notice; TRCP 6.05 expands statutory time period only in
those cases when that time period is triggered by “the service of a notice,”
as opposed to mere existence of notice. McGinnis v. State, 4/30/15, WS,
Armstrong, dissent by Stafford, 7 pages.
http://www.tncourts.gov/sites/default/files/mcginnisbarbaraopn.pdf
http://www.tncourts.gov/sites/default/files/mcginnisdis.pdf
GOVERNMENT: When Kennedy with Rutherford County Sheriff’s Office
began wrestling program under auspices of Sheriff’s Athletic Fellowship &
Enrichment (S.A.F.E.) program, program moved to Blackman Middle
School, Rutherford County Board of Education approved Kennedy’s request
to construct 60-foot by 100-foot metal building adjacent to school’s gym,
Rutherford Wrestling Club (Club) used building until fall 2010, Arnold was
elected sheriff in 8/10, day after assuming office, Arnold informed Kennedy
that, if he wished to remain with Sheriff’s Office, he would have to accept
reassignment, Kennedy resigned from sheriff’s office, Arnold, accompanied
by sheriff’s deputies and group of inmates, removed wrestling mats,
equipment, and other items from wrestling program building on 10/29/10,
Board of Education presented Club with Use of Facilities Form, which
Kennedy refused to sign, after being denied access to building, Club filed
suit against Arnold and Rutherford County, and trial court concluded that
Club was booster-club-type organization, that funds it raised were spent on
behalf of Sheriff’s Department’s Wrestling Club and that Club retained no
right of ownership or interest in any of personal property in question, i.e.,
contents of building located at Blackman Middle School, evidence did not
preponderate against trial court’s findings in regard to ownership of building
and personal property; trial court correctly declined to establish resulting
trust in favor of Club when evidence was not clear and convincing that
parties intended for Club to own building. Rutherford Wrestling Club Inc.
v. Arnold, 4/30/15, MS, McBrayer, 13 pages.
http://www.tncourts.gov/sites/default/files/rutherfordwrestlingclub.opn_.pdf
GOVERNMENT: When tenured teacher, after receiving notice of charges
pending against her, demanded hearing before school board on 10/18/05,
school board was required by Teacher Tenure Act (Act) to conduct hearing
on charges within 30 days of teacher’s demand, school board did not hold
hearing until 11/06, and trial court held that because delay did not affect
outcome of hearing, school board’s failure to comply with Act was
harmless and that teacher was not entitled to relief, teacher is entitled to
award of back pay for number of days over 30 that she was suspended
without pay and without hearing following her demand for hearing; timely
hearing requirement in TCA 49-5-512(a)(2) is directory rather than
mandatory; although some sanction for board’s noncompliance with timely
hearing requirement is necessary, subsequent substantive actions of board
are not rendered void; proper remedy is award of back pay for additional
days that teacher was suspended without pay and without hearing in
violation of Act. Emory v. Memphis City Schools Board of Education,
4/29/15, WS at Memphis, Gibson, 11 pages.
http://www.tncourts.gov/sites/default/files/emoryrogelynnopn.pdf
GOVERNMENT: Even if members of public body engage in conduct that
violates Open Meetings Act, action of public body will not be deemed void
if, in interim, there was “new and substantial reconsideration of the issues
involved, in which the public is afforded ample opportunity to know the
facts and to be heard with reference to the matters at issue.” Flat Iron
Partners LP v. City of Covington, 4/30/15, WS, Armstrong, 20 pages.
http://www.tncourts.gov/sites/default/files/flatironpartnersopn.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL PROCEDURE: Evidence was not sufficient to convict defendant of
16 of 18 counts of aggravated rape (Counts 2 through 17) when state failed to
make proper election of offenses for those counts – although defendant generally
admitted to anally penetrating victim with his penis 15 to 45 times between 5/12
and 8/12, he provided dates only for Counts 1 and 18, state did not question young
victim about any specific events, dates, locations, or conduct by defendant relative
to incidents, and although state’s theory was that incidents must have occurred on
dates when victim’s mother worked and when defendant did not work and was
home with victim, no evidence was presented that any prohibited conduct
occurred on or around dates listed in Counts 2 through 17; evidence was not
sufficient to convict defendant of aggravated rape in Count 1 when trial court’s
instruction to jury relative to Count 1 shows that only evidence relied upon by
state was defendant’s statement to police, and conviction cannot be based solely
on defendant’s confession; although trial judge failed to require state to make
election of aggravated rape offense relative to Count 18, error was harmless when
proof showed that defendant penetrated victim’s anus on 8/1/12 and only one
incident was alleged to have occurred on that date, and as such, it would constitute
speculation to conclude that jury was not unanimous in determining that defendant
penetrated victim’s anus with his penis on 8/1/12. State v. Espinosa, 4/29/15,
Nashville, Montgomery, 22 pages.
http://www.tncourts.gov/sites/default/files/espinosaloretoopnb.pdf
CRIMINAL PROCEDURE: In DUI case, trial judge properly granted
defendant’s motion to suppress results of defendant’s blood alcohol content when
exigent circumstances did not exist to justify warrantless blood draw – officers
were called to scene of three-car accident, defendant was not injured in accident or
transported to hospital for any reason following accident, defendant remained on
scene for approximately 1.5 hours while officers investigated him for DUI, after
being transported to police station, defendant waited another 30 minutes for nurse
to arrive and draw his blood, while officer testified that it usually takes him 2.5
hours to obtain warrant, he failed to explain why he was unable to obtain warrant
during nearly 2.5-hour delay between incident and blood draw, and officer failed
to identify any factors that would have delayed process of obtaining warrant and
instead relied solely on his belief that no warrant was required to conduct
mandatory blood draw pursuant to TCA 55-10-406(f)(1); TCA 55-10-406(f)(1),
mandatory blood draw statute, is not unconstitutional and does not dispense with
warrant requirement – although statute makes no mention of necessity of warrant,
statute’s silence in this regard should not be read as dispensation of warrant
requirement. State v. Brown, 4/30/15, Jackson, McMullen, Easter concurred in
results only, 11 pages.
http://www.tncourts.gov/sites/default/files/brownmelvinopn.pdf
SIXTH CIRCUIT COURT OF APPEALS
INSURANCE: When home was damaged by fire, insurer paid mortgage
balance to mortgagee and then filed suit against mortgagors to recover
payment, mortgagors filed counterclaim seeking payment for value of
property in excess of outstanding mortgage, as well as personal property,
and jury rendered verdict in favor of mortgagors, district court did not err
by refusing to instruct jury that mortgagors had to prove that they did not
cause fire as insurer bore burden of proof regarding its arson defense;
district court did not err in denying insurer judgment as matter of law under
FRCP 50 on whether retaining wall and driveway were covered by “other
structures” provision of policy when reasonable jurors could differ on
whether there was sufficient space between dwelling and driveway or
retaining wall to qualify either item as part of “other structures”; in holding
that dwelling was constructive total loss, justifying demolition of property
rather than repair, district court erred by invoking constructive loss
doctrine, but error was harmless because, applying identity-and-character
test, demolition order was valid, dwelling would not maintain its identity
and character after being razed, and, thus, property was actual total loss.
Cincinnati Insurance Co. v. Banks, 4/28/15, Batchelder, 20 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0308n-06.pdf
INSURANCE: In multi-count action against Chicago Title Insurance
Company alleging that Chicago Title’s fee structure associated with “title
searches” in Shelby County violates Tennessee law, trial court properly
granted Chicago Title summary judgment; under Rule 0780-01-12-.02,
regardless of name used, if Chicago Title produces property’s “history of
title” “for a given period of time,” consisting of “listing, summary, copy or
some combination thereof of documents or matters,” and these “documents
or matters” are deemed to impart “constructive notice under” Tennessee
law, it may charge separately for this compilation as it constitutes “abstract
of title”; although Chicago Title called report for which separate $300 fee
was charged “title search,” not “abstract of title,” it nonetheless falls within
Tennessee regulation’s definition of “abstract of title.” S&M Homes LLC v.
Chicago Title Insurance Co., 5/1/15, White, 13 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0311n-06.pdf
CRIMINAL PROCEDURE: District court’s decision granting petitioner
habeas corpus relief on basis of ineffective assistance of trial counsel is
reversed; district court failed to apply appropriate degree of deference to
state courts’ decisions as question under Strickland is not what reviewing
judge would have done in hindsight, or even what attorney himself would
have done in hindsight, but whether attorney’s behavior at trial was so
objectively unreasonable that it overcomes strong presumption that
counsel’s conduct falls within wide range of reasonable professional
assistance; Tennessee Court of Criminal Appeals accurately stated
Strickland standard as governing law and then reasonably determined that
introducing more “evidence of prior consistent statements” through
getaway driver’s attorney (Wing) would not have significantly improved
credibility of getaway driver (Schultz); defense’s best strategy was to argue
that Schultz’s version of events – in which petitioner was not involved in
shooting – was true, most compelling evidence for this version of events
was Schultz’s own live first-person account of how he killed victims, and
petitioner’s trial counsel attempted to rehabilitate Schultz’s credibility by
playing for jury video of Schultz’s prior consistent confession to police.
Tyler v. Ray, 4/27/15, Siler, concurrence by Batchelder, 14 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0304n-06.pdf
CRIMINAL PROCEDURE: In case in which defendant was charged with two
counts of being felon in possession of firearm, district court erred in denying
defendant’s motion to suppress based on improper pre-Miranda questioning by
law enforcement officers; police officer’s interrogation strategy of eliciting preMiranda statements, Mirandizing suspect “midstream,” and then asking similar
questions so suspect will restate pre-Miranda admissions is improper; timing and
circumstances of defendant’s questioning suggest that officer was attempting to
induce defendant to admit pre-Miranda that any weapons in car belonged to him –
officer knew that defendant was recently found in possession of firearms, knew
defendant’s criminal history, which indicted he was felon, and knew that
defendant was sitting in passenger seat of car, suggesting that car was not his, with
this knowledge, officer began questioning defendant about presence of weapons in
car and whether his fingerprints would be on any weapons found just seconds
after defendant was unexpectedly surrounded by between 10 to 20 armed law
enforcement agents, arrested, taken to ground, and handcuffed, and instead of
transporting defendant to police station, officer gave defendant Miranda warning
and immediately began asking him about weapon again, getting him to repeat his
prior admission; when prior statement is coerced, time that passes between
confessions, change in place of interrogations, and change in identity of
interrogators all bear on whether that coercion has carried over into second
confession; defendant’s pre-Miranda and post-Miranda statements should have all
been suppressed. United States v. Ashmore, 5/1/15, Donald, 22 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0321n-06.pdf
COURT OF WORKERS’ COMPENSATION CLAIMS
WORKERS’ COMPENSATION: In case in which employee contended
that he suffered hernia while lifting heavy pieces of wood in course and
scope of his employment, employee’s request to select new treating
physician selected from panel is denied when employee selected doctor (Dr.
Adcock) as authorized treating physician instead of waiting for provision of
panel so that he would receive immediate treatment; employee’s request for
additional medical and temporary disability benefits is denied when
employee failed to rebut Adcock’s adverse causation opinion with opinion
of another physician. Careathers v. Cardin Forest Products LLC, 1/23/15,
Wyatt, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1048&context=utk_workerscomp
WORKERS’ COMPENSATION: When employee submitted resignation
letter to employer advising that he would be “leaving the maintenance
positon at Sunrise Village Apartments on September 15, 2014,” employee
fell and injured his back while working on 8/12/14, employer accepted
workers’ comp claim and provided medical care, employee advised
employer that he had job offer but, due to his back injury, he did not believe
he could accept offer and expressed desire to retain his position at
employer, employer refused to retain employee and he ceased working for
employer on 9/15/14, and employee sought temporary disability benefits for
period he last worked for employer, from 9/15/14 through date of hearing,
employee is not entitled to temporary disability benefits for requested time
frame; employer is not required to return employee to work, postacceptance of his resignation, merely because he suffered workplace injury;
proof shows by preponderance of evidence that employee was able to, and
in fact did, continue working at employer for two weeks within restrictions
at issue, employee had ability to work, employer had light duty available
for employee as of not only 9/15/14 but also thereafter, and hence, even if
employee had not voluntarily resigned, he would not be entitled to
temporary disability benefits for requested time frame. Anderson v.
Hallmark Management Inc., 1/22/15, Phillips, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1049&context=utk_workerscomp
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