TAM Bytes, May 6, 2013
Content
TAM-BYTES May 6, 2013 Vol. 16, No. 18
2013 CLE CALENDAR Audio Conferences Earn one hour of DUAL credit! “Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls,” 60minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern) “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,” 60minute 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 2 p.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, in suit arising out of accident involving shuttle bus, rules federal regulation did not preempt bus passenger’s claims premised on lack of passenger seatbelts and use of tempered glass in side windows of bus; Supreme Court affirms award of workers’ comp benefits in case in which employee at nursing and rehab facility, fell while walking to nursing station when, according to employee, ball of her right foot “stuck” and her inability to lift her foot interrupted her gait, causing her to fall forward; Supreme Court holds order vacating arbitration award and ordering second arbitration is appealable order;
Court of Appeals affirms dismissal of medical malpractice suit based on plaintiff’s failure to comply with TCA 29-26-121(a)(4), which requires proof of service of written pre-suit notice to be filed “with the complaint”; Court of Appeals affirms trial court’s decision to designate mother primary residential parent of parties’ daughter and father as primary residential parent of parties’ two sons when, while separating siblings is drastic remedy, there has been weakening of bond between mother and two sons; Court of Criminal Appeals rules trial court did not violate defendant’s right to fair trial by requiring defendant to wear “stun belt” as in -court restraint during trial when state provided need for use of stun belt; Court of Criminal Appeals affirms trial court’s grant of defendant’s motion to suppress out-of-court identification of defendant via photographic array and subsequent in-court identification by witness at suppression hearing when witness was informed prior to viewing array that suspect’s photo was included, witness was shown exact same array, with defen dant’s photo appearing in position number four, two times, and after witness had made her selection, she was told that she had chosen correctly; and U.S. District Court rules ex-wife violated federal Wiretap Act and Tennessee Wiretap Act by secretly installing spyware on ex-husband’s office computers in order to intercept his incoming emails and gain advantage during parties’ divorce.
SUPREME COURT TORTS: When concrete truck collided with shuttle bus used to transport passengers between airport and rental car facility, passenger, who suffered severe brain injury, and his wife (plaintiffs) filed suit against owner of bus, manufacturer of bus, manufacturer of bus windows, and franchisor of rental car business (defendants), trial court granted summary judgment to window manufacturer and partial summary judgment as to products liability claims against bus owner and franchisor, but otherwise denied defendants’ motions for summary judgment, which asserted that plaintiffs’ claims were preempted by federal motor vehicle safety standards, and jury assessed 100% of fault to corporate owner of concrete truck, which reached settlement with plaintiffs prior to trial, federal regulations, FMVSS 205 and 208, do not implicitly preempt plaintiffs’ claims premised on lack of passenger seatbelts and use of tempered glass in side windows of bus; evidence was sufficient to establish causation as to plaintiffs’ claim premised on use of perimeter seating; judgment of Court of Appeals is reversed and cause is remanded to Court of Appeals for consideration of plaintiffs’ claims of error during course of trial. Lake v. Memphis Landsmen LLC, 5/3/13, Jackson, Wade, unanimous, 25 pages.
http://www.tncourts.gov/sites/default/files/lakecliftonopn.pdf
WORKERS’ COMPENSATION: In case in which employee, multiple data set coordinator, fell while walking to nursing station, evidence did not preponderate against trial court’s conclusion that employee sustained compensa ble injury arising out of her employment when employee testified that she had previously observed substances such as spit, urine, and spilled medications on employer’s floors, employee stated that certain medications could make floor “sticky” when spilled, in describing her fall, employee stated that ball of her right foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall forward, and employee testified that she knew that something on floor caused her to fall; employer contended that fall was idiopathic, but trial court accredited employee’s testimony that fall had occurred as she described and concluded that hazard was incident to her employment, and although employer’s witnesses testified that they carefully inspected area where employee had fallen and found no substance on floor or any irregularity in floor that might have caused her to fall, trial court concluded that nursing staff could have tracked away whatever substance was present on floor. Vandall v. Aurora Healthcare LLC, 4/24/13, Jackson, Holder, dissent by Koch, 4-1, 8 pages.
http://www.tncourts.gov/sites/default/files/vandallmopn.pdf http://www.tncourts.gov/sites/default/files/vandallm_dissent.pdf
COMMERCIAL LAW: In case involving securities being heard in Tennessee courts, both Federal Arbitration Act (FAA) and Tennessee Uniform Arbitration Act apply; FAA’s appeal provisions do not preempt state appeal provisions consistent with Uniform Arbitration Act; order that vacates arbitration award and orders second arbitration is appealable – it is order “denying confirmation of an award” for purposes of TCA 29-5-319(a)(3), regardless of whether party opposing petition to vacate award filed separate cross-petition for confirmation under TCA 29-5-312 or whether trial court has expressly denied confirmation in its written order. Morgan Keegan & Co. v. Smythe, 4/25/13, Jackson, Koch, 4-0, 19 pages.
http://www.tncourts.gov/sites/default/files/morgankeeganopn_0.pdf
COMMERCIAL LAW: When law firm sued former partner and former paralegal, alleging fraud and breach of fiduciary duty, trial court erred in ordering discovery without limiting scope of discovery to issue of arbitrability, in contravention of Tennessee Uniform Arbitration Act, and erred in referring parties to mediation in effort to resolve all issues; case is remanded to trial court for determination on motions to compel arbitration. Glassman, Edwards, Wyatt, Tuttle & Cox P.C. v. Wade, 4/30/13, Jackson, Holder, unanimous, 6 pages.
http://www.tncourts.gov/sites/default/files/glassmanopn.pdf
COURT OF APPEALS TORTS: When plaintiff failed to file proof of service of pre-suit notice with complaint in medical malpractice suit as required by TCA 29-26-121(a)(4), required attachments were not filed with compliant, disc containing documentation was filed as exhibit to complaint 12 days after complaint was filed, plaintiff’s attorney filed required affidavit after defendant filed motion for summary judgment, and plaintiff admitted that no extraordinary cause existed to excuse failure to comply with statute, trial court properly dismissed suit; subsequent amendment of complaint did not cure deficiencies. Thurmond v. Mid-Cumberland Infectious Disease Consultants PLC, 4/25/13, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/thurmondr_opn_0.pdf
TORTS: When instructor allowed freshman ROTC student (plaintiff) and other students at West High School in Knoxville to drink alcohol to point of intoxication and, while students were intoxicated, instructor persuaded them to expose their breasts, plaintiff reported episodes to school and her parents when instructor’s demands escalated to point that he repeatedly encouraged plaintiff to allow him to film her and others in sexual “threesome,” suit was filed against instructor and his employer, Knox County Board of Education (KCBE), claims against instructor were tried to jury, claims against KCBE under Governmental Tort Liability Act were heard simultaneously by trial court, jury awarded plaintiff damages against instructor for negligent infliction of emotional distress, and trial court determined that KCBE was not liable for instructor’s actions, evidence did not preponderate against trial court’s finding that instructor was not acting within scope of his employment when he committed offensive acts against plaintiff; evidence did not preponderate against trial court’s finding that no other employee of KCBE was negligent in failing to prevent instructor from preying upon student; trial judge did not abuse discretion in failing to make disclosure, failing to recuse himself, or failing to grant new trial based on past employment of judge’s wife by KCBE as one of more than 100 secretaries in location other than West High School. Doe v. Knox County Board of Education, 4/29/13, ES, Susano, 15 pages.
http://www.tba.org/sites/default/files/Doej_042913.pdf
COMMERCIAL LAW: When commercial lease gave tenant two successive options to extend term of lease, provided tenant gave timely notice of its intent to exercise renewal option, tenant exercised first renewal option but did not give timely notice of intent to exercise second option, lease also contained language giving tenant grace period to exercise option if landlord gave notice that landlord had not received notice of renewal, landlord did not give written notice to tenant, and tenant filed suit seeking declaratory judgment and damages for breach of contract, trial court properly held that grace period was never triggered so that
tenant’s renewal option lapsed; implication of contractual provision advocated by tenant to require landlord to “remind” tenant of deadline for exercising renewal option is not warranted as either rooted in “the common law of Tennessee” or “necessary to meet the ends of justice.” Captain D’s Realty LLC v. EP-D Ltd., 4/30/13, WS, Kirby, 10 pages.
http://www.tncourts.gov/sites/default/files/captaindsopn.pdf
COMMERCIAL LAW: Evidence did not preponderate against trial court’s finding that defendant breached duty of good faith in unilaterally demanding arbitration in forum of its choice, in setting arbitrary deadline, and then in unilaterally accelerating deadline; case is remanded to trial court for consideration of whether defendant’s breach of duty of good faith operated as waiver of its right to seek arbitration pursuant to contract. Healthmart USA LLC v. Directory Assistants Inc., 4/29/13, WS at Nashville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/healthmart_opn.pdf
TAXATION: In case in which petitioners, holders of special use permits issued by federal government allowing them to own and use for non-commercial recreational purposes certain improvements on federally-owned national forest land, filed suit challenging tax assessor’s valuation of petitioners’ interests in properties as leasehold interests, trial court correctly found that tax assessors’ appraisal methodology violated TCA 67-5-605 by arbitrarily applying static 99-year term when express tem of special use permits was less than seven years during tax years in question (2003 through 2008); trial court erred in ordering tax assessor to allow petitioners offsetting credit when petitioners cited no legal authority requiring or permitting such result; on remand, tax assessor must reassess petitioners’ leasehold interests for years 2003 through 2008. Dooly v. State Board of Equalization, 4/29/13, ES, Frierson, 18 pages.
http://www.tncourts.gov/sites/default/files/dooly.pdf
PROPERTY: Trial court properly concluded that notes on final subdivision plat constituted restrictive covenants preventing purchasers of property in subdivision from installing experimental wetland sewage disposal system on their property or on easement for benefit of their property. Bernier v. Morrow, 4/26/13, WS at Nashville, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/bernierm._opn.pdf
PROPERTY: Trial court properly granted summary judgment to judgment creditor of Hobbs’ estate on claim that Hobbs fraudulently deeded interest in real property to his wife so she would receive it free from claims of his legitimate creditors after his death; Hobbs did not receive “reasonably equivalent value” for purposes of Uniform Fraudulent Transfer Act when he executed quitclaim deed at issue, and proof
showed that Hobbs reasonably should have believed that he would incur debts beyond his ability to pay as they became due – at time Hobbs married wife, he had no significant assets, since he had only recently received discharge in bankruptcy, he subsequently used power of attorney to transfer one uncle’s farmland and another uncle’s life savings to himself, suits were filed for recovery of all those assets prior to execution of quitclaim deed at issue, and even though judgment had not yet been rendered in those suits, decedent had good reason to believe that once suits ran their course, he would incur liabilities and debts that he could not pay. In re Estate of Ralston, 4/29/13, MS, Cottrell, 12 pages.
http://www.tncourts.gov/sites/default/files/ralstondhestate_opn.pdf
PROPERTY: In suit by purchaser of land to recover damages for shortage in acreage and road frontage of property purchased, trial court properly concluded that sale was by acre, rather than in gross, when mention of specific acreage in contract was intentional and when no other designation of property was used and property description in closing statement prepared by plaintiff’s broker and signed by defendant stated “65.2 acres,” rather than another designation; fact that contract states lump sum amount is not in conflict with determination that sale was to be by acre. Martin v. Milstead, 4/30/13, MS, Dinkins, 5 pages.
http://www.tncourts.gov/sites/default/files/martinh_opn.pdf
FAMILY LAW: Evidence did not preponderate against trial court’s decision to designate mother primary residential parent of parties’ 15 -year-old daughter and father as primary residential parent of parties’ two sons (who are 14 and 11 years old, respectively) when, while separating siblings is drastic remedy, there has been weakening of bond between mother and her two sons – mother deserves some credit for weakening bond in first instance by spending time with her lover rather than children, but father has played on that weakness from date of separation to present, with two boys having adopted father’s views with regard to mother, calling her “liar” and stating that she “does not ever do anything for them” and that she is trying to harm father and turn their sister against them – and guardian ad litem seriously considered recommending that two boys be placed in foster care because he feared that boys would flee if they are forced to reside with mother; because something must be done to improve family relationships at stake, i.e., relationship among siblings, relationship between mother and sons, and relationship between father and daughter, on remand, trial court is directed to hold hearing on subject of family counseling, with therapists appointed who will be charged with developing comprehensive counseling program and therapy sessions to address mending of three relationships at issue – such counseling will continue for as long as necessary but only during minority of children; evidence preponderated against trial court’s decision to hold mother responsible, in event of foreclosure on marital home, for one-half of any deficiency left on note when, although both mother and father were
liable to bank for mortgage on home, trial court awarded father marital home, along with any debt associated with it, and father has successfully hidden his financial dealings except to extent mother was able to recreate them by gleaning through records that she could access. Maupin v. Maupin, 4/29/13, ES, Susano, 24 pages.
http://www.tncourts.gov/sites/default/files/maupinalopn.pdf
FAMILY LAW: In case in which parties, who were married for 15 years and had three children together, were divorced in 9/10, trial court did not abuse discretion in prohibiting K.K., children’s 19-year-old babysitter with whom mother spent great deal of time and had very close relationship, from having unsupervised contact with children and from spending night with mother when children were present in home; although trial court made no finding of nature of relationship between mother and K.K., trial court did make extensive findings reflecting its concern that relationship, whatever it be, was clearly inappropriate considering nothing more than sheer amount of time and attention mother devoted to K.K. over her own family and that, in light of father’s testimony that K.K. had told him that she had experienced lesbian relationships while in high school, had attempted suicide more than once, and had used drugs in past, K.K.’s character was of concern, especially in connection with her exposure to children. Mobley v. Mobley, 4/30/13, ES, Susano, 27 pages.
http://www.tncourts.gov/sites/default/files/mobleyc.pdf
FAMILY LAW: In case in which mother filed suit alleging that father had failed to pay adult daughter’s college-related expenses as agreed-to by father in parties’ marital dissolution agreement at time of parties’ divorce, trial court erred in awarding mother her attorney fees; absent provision regarding attorney fees in parties’ MDA, TCA 36-5-103(c) does not authorize award of attorney fees in case involving only payment or non-payment of post-majority support. Powers v. Powers, 4/30/13, WS, Stafford, 9 pages.
http://www.tncourts.gov/sites/default/files/powersgopn.pdf
CIVIL PROCEDURE: In second consolidated case to be tried in number of related cases involving accidents that occurred in Mexico and that were allegedly caused by defective tires and/or vehicles, trial judge did not abuse discretion in refusing to recuse himself; there was no basis for disqualification in trial court’s rulings, and trial judge’s statements regarding quandary facing plaintiffs’ counsel did not indicate bias; plaintiffs did not provide any evidence or argument that would indicate that trial judge’s interest in additional large screen monitor was anything other than aid in trying upcoming 13 cases, and plaintiffs failed to demonstrate that trial court had interest so concrete, personal, or strong that failure of his proposal would affect his judgment or impartiality. In re Bridgestone Corp., 4/26/13, MS, Cottrell, 15 pages.
http://www.tncourts.gov/sites/default/files/inrebridgestone10b_opn.pdf
APPEAL & ERROR: Circuit court erred in dismissing appeal from general sessions court based on appellant’s failure to post surety bond under TCA 27-5-103; as held in Bernatsky v. Designer Baths & Kitchens LLC, 38 TAM 10-21 (Tenn.App. 2013), payment of “standard court cost” under TCA 8-21-401(b)(1)(C)(i) satisfied requirement to give bond for costs of appeal to circuit court under TCA 27-5103(a). Fields v. Williams, 4/30/13, WS, Stafford, 4 pages.
http://www.tncourts.gov/sites/default/files/fieldsaopn.pdf
COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: Trial court did not violate defendant’s right to fair trial by requiring defendant to wear “stun belt” as in -court restraint during trial when state provided need for use of stun belt – defendant was on trial for very violent crime, i.e., murder of two people by beating them with baseball bat, and he had recently been convicted of another violent murder, and he was in desperate situation because he was facing potential of two additional life sentences when he already had been given sentence of life plus 40 years – and there was no evidence that jury saw or knew of stun belt or that stun belt interfered with defendant’ s participation in trial. State v. Fields, 4/30/13, Knoxville, Smith, 45 pages.
http://www.tncourts.gov/sites/default/files/fieldsmichaelopn.pdf
CRIMINAL PROCEDURE: In case in which defendant was identified by eyewitness (Gates) as individual who fired shot at security guard in front of nightclub on 4/6/10, trial judge did not abuse discretion in granting defendant’s motion to suppress out-of-court identification of defendant via photographic array and subsequent in-court identification by Gates at suppression hearing when Gates was informed prior to viewing array that suspect’s photograph was included, Gates was shown exact same array, with defendant’s photo appearing in position number four, two times, after Gates had made her selection, she was told that she had chosen correctly, as “other evidence suggested the defendant’s guilt,” although Gates claimed to have provided “vivid” description of shooter immediately after shooting, description she provided in her first interview of person who was driving car was vague (she described shooter only as “light-skinned black male”), and she failed to tell police that person who argued with bouncer was also shooter, and same photo array had been shown to multiple witnesses (these witnesses, including Gates, were all friends who attended Tennessee State University) who could not identify shooter but had opportunity to confer with one another prior to Gates’ identification of defendant on 4/21/10. State v. Lyons, 5/2/13, Nashville, Witt, 10 pages.
http://www.tncourts.gov/sites/default/files/lyonsdominicopn.pdf
CRIMINAL PROCEDURE: Trial judge erred in granting defendant’s motion to suppress evidence obtained as result of stop of defendant’s vehicle when officer had, at least, reasonable suspicion that defendant had violated TCA 55-8-125 at time officer initiated traffic stop – officer’s testimony established that highway was divided into two roadways by intervening space, that defendant was driving in “wrong direction” on highway and, as such, violated statute by failing to drive in “right-hand roadway” of highway, and that defendant’s driving provided officer with reasonable suspicion to effectuate traffic stop; defendant’s charges for DUI and violation of implied consent law are reinstated, and case is remanded to trial court for further proceedings. State v. Wagster, 4/30/13, Jackson, Bivins, 8 pages.
http://www.tncourts.gov/sites/default/files/wagsterbopn.pdf
U.S. DISTRICT COURT CIVIL PROCEDURE: Ex-wife violated federal Wiretap Act and Tennessee Wiretap Act by secretly installing spyware on ex-husband’s work computers without his consent to intercept his incoming email; statutes of limitation under both statutes began to run when ex-husband had reasonable opportunity to discover spyware; because ex-wife’s violation of wiretap acts was part of larger scheme to gain advantage over ex-husband during their divorce, ex-husband is entitled to award of $10,000 in punitive damages, in addition to $10,000 in statutory damages. Klumb v. Goan, 7/19/12, E.D.Tenn., Carter, 25 pages.
http://www.scribd.com/doc/100853614/Klumb-v-Goan-2-09-Cv-115-E-D-Tenn-July-19-2012
ATTORNEY GENERAL OPINIONS TAXATION: Allocation of state revenue, i.e., portion of state gasoline tax, to private property owners association for purpose of building and/or maintaining private roads that are open to travel by general public is constitutionally permissible. Attorney General Opinion 13-32, 4/24/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-32.pdf
CRIMINAL LAW: Proposed bill, which would create criminal offense of “continuous sexual abuse of a child,” is defensible against constitutional challenge. Attorney General Opinion 13-35, 4/29/13, 19 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-35.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/
2013 CLE CALENDAR Audio Conferences Earn one hour of DUAL credit! “Living in a Digital World: How Attorneys Can Effectively Use Digital Technology While Avoiding Ethical Pitfalls,” 60minute webinar presented by Brian Faughnan, Memphis attorney, on Thursday May 30 at 2 p.m. (Central), 3 p.m. (Eastern) “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,” 60minute 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 2 p.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, in suit arising out of accident involving shuttle bus, rules federal regulation did not preempt bus passenger’s claims premised on lack of passenger seatbelts and use of tempered glass in side windows of bus; Supreme Court affirms award of workers’ comp benefits in case in which employee at nursing and rehab facility, fell while walking to nursing station when, according to employee, ball of her right foot “stuck” and her inability to lift her foot interrupted her gait, causing her to fall forward; Supreme Court holds order vacating arbitration award and ordering second arbitration is appealable order;
Court of Appeals affirms dismissal of medical malpractice suit based on plaintiff’s failure to comply with TCA 29-26-121(a)(4), which requires proof of service of written pre-suit notice to be filed “with the complaint”; Court of Appeals affirms trial court’s decision to designate mother primary residential parent of parties’ daughter and father as primary residential parent of parties’ two sons when, while separating siblings is drastic remedy, there has been weakening of bond between mother and two sons; Court of Criminal Appeals rules trial court did not violate defendant’s right to fair trial by requiring defendant to wear “stun belt” as in -court restraint during trial when state provided need for use of stun belt; Court of Criminal Appeals affirms trial court’s grant of defendant’s motion to suppress out-of-court identification of defendant via photographic array and subsequent in-court identification by witness at suppression hearing when witness was informed prior to viewing array that suspect’s photo was included, witness was shown exact same array, with defen dant’s photo appearing in position number four, two times, and after witness had made her selection, she was told that she had chosen correctly; and U.S. District Court rules ex-wife violated federal Wiretap Act and Tennessee Wiretap Act by secretly installing spyware on ex-husband’s office computers in order to intercept his incoming emails and gain advantage during parties’ divorce.
SUPREME COURT TORTS: When concrete truck collided with shuttle bus used to transport passengers between airport and rental car facility, passenger, who suffered severe brain injury, and his wife (plaintiffs) filed suit against owner of bus, manufacturer of bus, manufacturer of bus windows, and franchisor of rental car business (defendants), trial court granted summary judgment to window manufacturer and partial summary judgment as to products liability claims against bus owner and franchisor, but otherwise denied defendants’ motions for summary judgment, which asserted that plaintiffs’ claims were preempted by federal motor vehicle safety standards, and jury assessed 100% of fault to corporate owner of concrete truck, which reached settlement with plaintiffs prior to trial, federal regulations, FMVSS 205 and 208, do not implicitly preempt plaintiffs’ claims premised on lack of passenger seatbelts and use of tempered glass in side windows of bus; evidence was sufficient to establish causation as to plaintiffs’ claim premised on use of perimeter seating; judgment of Court of Appeals is reversed and cause is remanded to Court of Appeals for consideration of plaintiffs’ claims of error during course of trial. Lake v. Memphis Landsmen LLC, 5/3/13, Jackson, Wade, unanimous, 25 pages.
http://www.tncourts.gov/sites/default/files/lakecliftonopn.pdf
WORKERS’ COMPENSATION: In case in which employee, multiple data set coordinator, fell while walking to nursing station, evidence did not preponderate against trial court’s conclusion that employee sustained compensa ble injury arising out of her employment when employee testified that she had previously observed substances such as spit, urine, and spilled medications on employer’s floors, employee stated that certain medications could make floor “sticky” when spilled, in describing her fall, employee stated that ball of her right foot “stuck” and that her inability to lift her foot interrupted her gait, causing her to fall forward, and employee testified that she knew that something on floor caused her to fall; employer contended that fall was idiopathic, but trial court accredited employee’s testimony that fall had occurred as she described and concluded that hazard was incident to her employment, and although employer’s witnesses testified that they carefully inspected area where employee had fallen and found no substance on floor or any irregularity in floor that might have caused her to fall, trial court concluded that nursing staff could have tracked away whatever substance was present on floor. Vandall v. Aurora Healthcare LLC, 4/24/13, Jackson, Holder, dissent by Koch, 4-1, 8 pages.
http://www.tncourts.gov/sites/default/files/vandallmopn.pdf http://www.tncourts.gov/sites/default/files/vandallm_dissent.pdf
COMMERCIAL LAW: In case involving securities being heard in Tennessee courts, both Federal Arbitration Act (FAA) and Tennessee Uniform Arbitration Act apply; FAA’s appeal provisions do not preempt state appeal provisions consistent with Uniform Arbitration Act; order that vacates arbitration award and orders second arbitration is appealable – it is order “denying confirmation of an award” for purposes of TCA 29-5-319(a)(3), regardless of whether party opposing petition to vacate award filed separate cross-petition for confirmation under TCA 29-5-312 or whether trial court has expressly denied confirmation in its written order. Morgan Keegan & Co. v. Smythe, 4/25/13, Jackson, Koch, 4-0, 19 pages.
http://www.tncourts.gov/sites/default/files/morgankeeganopn_0.pdf
COMMERCIAL LAW: When law firm sued former partner and former paralegal, alleging fraud and breach of fiduciary duty, trial court erred in ordering discovery without limiting scope of discovery to issue of arbitrability, in contravention of Tennessee Uniform Arbitration Act, and erred in referring parties to mediation in effort to resolve all issues; case is remanded to trial court for determination on motions to compel arbitration. Glassman, Edwards, Wyatt, Tuttle & Cox P.C. v. Wade, 4/30/13, Jackson, Holder, unanimous, 6 pages.
http://www.tncourts.gov/sites/default/files/glassmanopn.pdf
COURT OF APPEALS TORTS: When plaintiff failed to file proof of service of pre-suit notice with complaint in medical malpractice suit as required by TCA 29-26-121(a)(4), required attachments were not filed with compliant, disc containing documentation was filed as exhibit to complaint 12 days after complaint was filed, plaintiff’s attorney filed required affidavit after defendant filed motion for summary judgment, and plaintiff admitted that no extraordinary cause existed to excuse failure to comply with statute, trial court properly dismissed suit; subsequent amendment of complaint did not cure deficiencies. Thurmond v. Mid-Cumberland Infectious Disease Consultants PLC, 4/25/13, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/thurmondr_opn_0.pdf
TORTS: When instructor allowed freshman ROTC student (plaintiff) and other students at West High School in Knoxville to drink alcohol to point of intoxication and, while students were intoxicated, instructor persuaded them to expose their breasts, plaintiff reported episodes to school and her parents when instructor’s demands escalated to point that he repeatedly encouraged plaintiff to allow him to film her and others in sexual “threesome,” suit was filed against instructor and his employer, Knox County Board of Education (KCBE), claims against instructor were tried to jury, claims against KCBE under Governmental Tort Liability Act were heard simultaneously by trial court, jury awarded plaintiff damages against instructor for negligent infliction of emotional distress, and trial court determined that KCBE was not liable for instructor’s actions, evidence did not preponderate against trial court’s finding that instructor was not acting within scope of his employment when he committed offensive acts against plaintiff; evidence did not preponderate against trial court’s finding that no other employee of KCBE was negligent in failing to prevent instructor from preying upon student; trial judge did not abuse discretion in failing to make disclosure, failing to recuse himself, or failing to grant new trial based on past employment of judge’s wife by KCBE as one of more than 100 secretaries in location other than West High School. Doe v. Knox County Board of Education, 4/29/13, ES, Susano, 15 pages.
http://www.tba.org/sites/default/files/Doej_042913.pdf
COMMERCIAL LAW: When commercial lease gave tenant two successive options to extend term of lease, provided tenant gave timely notice of its intent to exercise renewal option, tenant exercised first renewal option but did not give timely notice of intent to exercise second option, lease also contained language giving tenant grace period to exercise option if landlord gave notice that landlord had not received notice of renewal, landlord did not give written notice to tenant, and tenant filed suit seeking declaratory judgment and damages for breach of contract, trial court properly held that grace period was never triggered so that
tenant’s renewal option lapsed; implication of contractual provision advocated by tenant to require landlord to “remind” tenant of deadline for exercising renewal option is not warranted as either rooted in “the common law of Tennessee” or “necessary to meet the ends of justice.” Captain D’s Realty LLC v. EP-D Ltd., 4/30/13, WS, Kirby, 10 pages.
http://www.tncourts.gov/sites/default/files/captaindsopn.pdf
COMMERCIAL LAW: Evidence did not preponderate against trial court’s finding that defendant breached duty of good faith in unilaterally demanding arbitration in forum of its choice, in setting arbitrary deadline, and then in unilaterally accelerating deadline; case is remanded to trial court for consideration of whether defendant’s breach of duty of good faith operated as waiver of its right to seek arbitration pursuant to contract. Healthmart USA LLC v. Directory Assistants Inc., 4/29/13, WS at Nashville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/healthmart_opn.pdf
TAXATION: In case in which petitioners, holders of special use permits issued by federal government allowing them to own and use for non-commercial recreational purposes certain improvements on federally-owned national forest land, filed suit challenging tax assessor’s valuation of petitioners’ interests in properties as leasehold interests, trial court correctly found that tax assessors’ appraisal methodology violated TCA 67-5-605 by arbitrarily applying static 99-year term when express tem of special use permits was less than seven years during tax years in question (2003 through 2008); trial court erred in ordering tax assessor to allow petitioners offsetting credit when petitioners cited no legal authority requiring or permitting such result; on remand, tax assessor must reassess petitioners’ leasehold interests for years 2003 through 2008. Dooly v. State Board of Equalization, 4/29/13, ES, Frierson, 18 pages.
http://www.tncourts.gov/sites/default/files/dooly.pdf
PROPERTY: Trial court properly concluded that notes on final subdivision plat constituted restrictive covenants preventing purchasers of property in subdivision from installing experimental wetland sewage disposal system on their property or on easement for benefit of their property. Bernier v. Morrow, 4/26/13, WS at Nashville, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/bernierm._opn.pdf
PROPERTY: Trial court properly granted summary judgment to judgment creditor of Hobbs’ estate on claim that Hobbs fraudulently deeded interest in real property to his wife so she would receive it free from claims of his legitimate creditors after his death; Hobbs did not receive “reasonably equivalent value” for purposes of Uniform Fraudulent Transfer Act when he executed quitclaim deed at issue, and proof
showed that Hobbs reasonably should have believed that he would incur debts beyond his ability to pay as they became due – at time Hobbs married wife, he had no significant assets, since he had only recently received discharge in bankruptcy, he subsequently used power of attorney to transfer one uncle’s farmland and another uncle’s life savings to himself, suits were filed for recovery of all those assets prior to execution of quitclaim deed at issue, and even though judgment had not yet been rendered in those suits, decedent had good reason to believe that once suits ran their course, he would incur liabilities and debts that he could not pay. In re Estate of Ralston, 4/29/13, MS, Cottrell, 12 pages.
http://www.tncourts.gov/sites/default/files/ralstondhestate_opn.pdf
PROPERTY: In suit by purchaser of land to recover damages for shortage in acreage and road frontage of property purchased, trial court properly concluded that sale was by acre, rather than in gross, when mention of specific acreage in contract was intentional and when no other designation of property was used and property description in closing statement prepared by plaintiff’s broker and signed by defendant stated “65.2 acres,” rather than another designation; fact that contract states lump sum amount is not in conflict with determination that sale was to be by acre. Martin v. Milstead, 4/30/13, MS, Dinkins, 5 pages.
http://www.tncourts.gov/sites/default/files/martinh_opn.pdf
FAMILY LAW: Evidence did not preponderate against trial court’s decision to designate mother primary residential parent of parties’ 15 -year-old daughter and father as primary residential parent of parties’ two sons (who are 14 and 11 years old, respectively) when, while separating siblings is drastic remedy, there has been weakening of bond between mother and her two sons – mother deserves some credit for weakening bond in first instance by spending time with her lover rather than children, but father has played on that weakness from date of separation to present, with two boys having adopted father’s views with regard to mother, calling her “liar” and stating that she “does not ever do anything for them” and that she is trying to harm father and turn their sister against them – and guardian ad litem seriously considered recommending that two boys be placed in foster care because he feared that boys would flee if they are forced to reside with mother; because something must be done to improve family relationships at stake, i.e., relationship among siblings, relationship between mother and sons, and relationship between father and daughter, on remand, trial court is directed to hold hearing on subject of family counseling, with therapists appointed who will be charged with developing comprehensive counseling program and therapy sessions to address mending of three relationships at issue – such counseling will continue for as long as necessary but only during minority of children; evidence preponderated against trial court’s decision to hold mother responsible, in event of foreclosure on marital home, for one-half of any deficiency left on note when, although both mother and father were
liable to bank for mortgage on home, trial court awarded father marital home, along with any debt associated with it, and father has successfully hidden his financial dealings except to extent mother was able to recreate them by gleaning through records that she could access. Maupin v. Maupin, 4/29/13, ES, Susano, 24 pages.
http://www.tncourts.gov/sites/default/files/maupinalopn.pdf
FAMILY LAW: In case in which parties, who were married for 15 years and had three children together, were divorced in 9/10, trial court did not abuse discretion in prohibiting K.K., children’s 19-year-old babysitter with whom mother spent great deal of time and had very close relationship, from having unsupervised contact with children and from spending night with mother when children were present in home; although trial court made no finding of nature of relationship between mother and K.K., trial court did make extensive findings reflecting its concern that relationship, whatever it be, was clearly inappropriate considering nothing more than sheer amount of time and attention mother devoted to K.K. over her own family and that, in light of father’s testimony that K.K. had told him that she had experienced lesbian relationships while in high school, had attempted suicide more than once, and had used drugs in past, K.K.’s character was of concern, especially in connection with her exposure to children. Mobley v. Mobley, 4/30/13, ES, Susano, 27 pages.
http://www.tncourts.gov/sites/default/files/mobleyc.pdf
FAMILY LAW: In case in which mother filed suit alleging that father had failed to pay adult daughter’s college-related expenses as agreed-to by father in parties’ marital dissolution agreement at time of parties’ divorce, trial court erred in awarding mother her attorney fees; absent provision regarding attorney fees in parties’ MDA, TCA 36-5-103(c) does not authorize award of attorney fees in case involving only payment or non-payment of post-majority support. Powers v. Powers, 4/30/13, WS, Stafford, 9 pages.
http://www.tncourts.gov/sites/default/files/powersgopn.pdf
CIVIL PROCEDURE: In second consolidated case to be tried in number of related cases involving accidents that occurred in Mexico and that were allegedly caused by defective tires and/or vehicles, trial judge did not abuse discretion in refusing to recuse himself; there was no basis for disqualification in trial court’s rulings, and trial judge’s statements regarding quandary facing plaintiffs’ counsel did not indicate bias; plaintiffs did not provide any evidence or argument that would indicate that trial judge’s interest in additional large screen monitor was anything other than aid in trying upcoming 13 cases, and plaintiffs failed to demonstrate that trial court had interest so concrete, personal, or strong that failure of his proposal would affect his judgment or impartiality. In re Bridgestone Corp., 4/26/13, MS, Cottrell, 15 pages.
http://www.tncourts.gov/sites/default/files/inrebridgestone10b_opn.pdf
APPEAL & ERROR: Circuit court erred in dismissing appeal from general sessions court based on appellant’s failure to post surety bond under TCA 27-5-103; as held in Bernatsky v. Designer Baths & Kitchens LLC, 38 TAM 10-21 (Tenn.App. 2013), payment of “standard court cost” under TCA 8-21-401(b)(1)(C)(i) satisfied requirement to give bond for costs of appeal to circuit court under TCA 27-5103(a). Fields v. Williams, 4/30/13, WS, Stafford, 4 pages.
http://www.tncourts.gov/sites/default/files/fieldsaopn.pdf
COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: Trial court did not violate defendant’s right to fair trial by requiring defendant to wear “stun belt” as in -court restraint during trial when state provided need for use of stun belt – defendant was on trial for very violent crime, i.e., murder of two people by beating them with baseball bat, and he had recently been convicted of another violent murder, and he was in desperate situation because he was facing potential of two additional life sentences when he already had been given sentence of life plus 40 years – and there was no evidence that jury saw or knew of stun belt or that stun belt interfered with defendant’ s participation in trial. State v. Fields, 4/30/13, Knoxville, Smith, 45 pages.
http://www.tncourts.gov/sites/default/files/fieldsmichaelopn.pdf
CRIMINAL PROCEDURE: In case in which defendant was identified by eyewitness (Gates) as individual who fired shot at security guard in front of nightclub on 4/6/10, trial judge did not abuse discretion in granting defendant’s motion to suppress out-of-court identification of defendant via photographic array and subsequent in-court identification by Gates at suppression hearing when Gates was informed prior to viewing array that suspect’s photograph was included, Gates was shown exact same array, with defendant’s photo appearing in position number four, two times, after Gates had made her selection, she was told that she had chosen correctly, as “other evidence suggested the defendant’s guilt,” although Gates claimed to have provided “vivid” description of shooter immediately after shooting, description she provided in her first interview of person who was driving car was vague (she described shooter only as “light-skinned black male”), and she failed to tell police that person who argued with bouncer was also shooter, and same photo array had been shown to multiple witnesses (these witnesses, including Gates, were all friends who attended Tennessee State University) who could not identify shooter but had opportunity to confer with one another prior to Gates’ identification of defendant on 4/21/10. State v. Lyons, 5/2/13, Nashville, Witt, 10 pages.
http://www.tncourts.gov/sites/default/files/lyonsdominicopn.pdf
CRIMINAL PROCEDURE: Trial judge erred in granting defendant’s motion to suppress evidence obtained as result of stop of defendant’s vehicle when officer had, at least, reasonable suspicion that defendant had violated TCA 55-8-125 at time officer initiated traffic stop – officer’s testimony established that highway was divided into two roadways by intervening space, that defendant was driving in “wrong direction” on highway and, as such, violated statute by failing to drive in “right-hand roadway” of highway, and that defendant’s driving provided officer with reasonable suspicion to effectuate traffic stop; defendant’s charges for DUI and violation of implied consent law are reinstated, and case is remanded to trial court for further proceedings. State v. Wagster, 4/30/13, Jackson, Bivins, 8 pages.
http://www.tncourts.gov/sites/default/files/wagsterbopn.pdf
U.S. DISTRICT COURT CIVIL PROCEDURE: Ex-wife violated federal Wiretap Act and Tennessee Wiretap Act by secretly installing spyware on ex-husband’s work computers without his consent to intercept his incoming email; statutes of limitation under both statutes began to run when ex-husband had reasonable opportunity to discover spyware; because ex-wife’s violation of wiretap acts was part of larger scheme to gain advantage over ex-husband during their divorce, ex-husband is entitled to award of $10,000 in punitive damages, in addition to $10,000 in statutory damages. Klumb v. Goan, 7/19/12, E.D.Tenn., Carter, 25 pages.
http://www.scribd.com/doc/100853614/Klumb-v-Goan-2-09-Cv-115-E-D-Tenn-July-19-2012
ATTORNEY GENERAL OPINIONS TAXATION: Allocation of state revenue, i.e., portion of state gasoline tax, to private property owners association for purpose of building and/or maintaining private roads that are open to travel by general public is constitutionally permissible. Attorney General Opinion 13-32, 4/24/13, 3 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-32.pdf
CRIMINAL LAW: Proposed bill, which would create criminal offense of “continuous sexual abuse of a child,” is defensible against constitutional challenge. Attorney General Opinion 13-35, 4/29/13, 19 pages.
http://www.tn.gov/attorneygeneral/op/2013/op13-35.pdf
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