TAM Bytes, May 9th, 2016

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Suit alleging trustee breached duty by failing to liquidate stock and diversify portfolio, proper standard to use when party seeks to modify parenting plan to change primary residential parent, legislation permitting counselor or therapist to refuse services to client as to goals or behaviors that conflict with counselor's or therapist's sincerely held principles, and more from Tennessee appellate courts.

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TAM-BYTES
May 9, 2016
Vol. 19, No. 19
TAM Webinars
“Cellular Information in Tennessee: Obtaining and Admitting in
Litigation,” 60-minute webinar presented by Tom Shaw, Assistant
General Counsel with Corrections Corporation of America in Nashville,
and Russell Taber, with Riley Warnock & Jacobson in Nashville, on
Wednesday, May 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Social Security Retirement Benefits: Looking at the Big Picture to
Benefit Your Client,” 60-minute webinar presented by Michael
Crowder, with Kennerly Montgomery & Finley in Knoxville, on
Thursday, May 26, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Types of Damages in Personal Injury Suits: Essential Practice Tips
for Tennessee Attorneys,” 60-minute webinar presented by Brad Gilmer
with The Hardison Law Firm in Memphis, on Thursday, May 31, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Tennessee Probate Case Law & Legislative Update,” 60-minute
webinar presented by Rebecca Blair & Julie Travis Moss with The Blair
Law Firm in Brentwood, on Tuesday, June 21, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
“Attorneys’ 2016 Employment Law Update: Latest from the
Tennessee Legislature and Courts,” 60-minute webinar presented by
David L. Johnson & Brent E. Siler with Butler Snow, on Tuesday, June
28, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit

“Litigating Causation Issues in Tennessee Healthcare Liability Cases,”
60-minute webinar presented by Chris Tardio with Gideon, Cooper & Essary
in Nashville, on Wednesday, June 29, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit

TAM On-Site Event

Personal Injury Law Conference for Tennessee
Attorneys
WHEN: Friday, September 23
WHERE: Nashville – Nashville School of Law
CLE: Earn up to 7.5 hours of CLE (6.5 GENERAL and 1 DUAL)
FACULTY: Judge Don R. Ash, senior judge, Tennessee Senior Judge
Program; Edward U. (Ned) Babb, Butler, Vines and Babb, PLLC, Knoxville;
Laura Baker, Law Offices of John Day PC, Brentwood; Brandon Bass, Law
Offices of John Day PC, Brentwood; Daniel Clayton, Kinnard, Clayton &
Beveridge, Nashville; Chuck Mangelsdorf, MGC Insurance Defense,
Nashville; J. Bryan Moseley, Moseley & Moseley, Murfreesboro; and T.
Kenan Smith, Hodges, Doughty & Carson, PLLC, Knoxville
HIGHLIGHTS: How West v. Shelby County Healthcare impacts medical
damages; negotiating with insurance adjusters; proving medical bills in a
personal injury case; Medicare set-aside allocations, approvals, and
administration; Truck accident litigation – trial strategies for both the plaintiff
and the defense; best practices in uninsured motorist cases; voir dire -- first
impressions, team building, and primary objectives; review of recent personal
injury cases; and dealing with a judge who is acting unethically.
For more information or to register call us at (800) 274-6774 or visit
www.mleesmith.com/tn-personal-injury-law
************************************************************
Tennessee Workers’ Compensation Physicians Conference, presented
by The Tennessee Bureau of Workers’ Compensation, to be held on
Saturday & Sunday, June 11-12, in Knoxville at the Embassy Suites
Knoxville/West.

19th Annual Tennessee Workers’ Compensation Educational
Conference, presented by The Tennessee Bureau of Workers’
Compensation, to be held on Tuesday, Wednesday, & Thursday, June 21
through June 23, in Murfreesboro at the Embassy Suites Nashville SEMurfreesboro.
For additional information or to register for either of these events, contact
the IWCF at (386) 677-0041 or email [email protected]

IN THIS WEEK’S TAM-Bytes
 Court of Appeals rules, in suit by beneficiary against bank that
served as trustee of trust, bank did not breach duty to plaintiff by
failing to liquidate bank stock and diversify portfolio;
 Court of Appeals vacates trial court’s modification of parenting plan
to make father primary residential parent when trial court applied
standard set out in TCA 36-6-101(a)(2)(C), subsection governing
modifications of residential parenting schedule, rather than
modification of primary residential parent, which is governed by
TCA 36-6-101(a)(2)(B);
 Court of Criminal Appeals, in DUI case, reverses grant of motion to
suppress evidence obtained from traffic stop when officer testified
that he stopped defendant’s vehicle after observing him driving on
uphill curves of mountain at high rate of speed; and
 General Assembly permits counselor or therapist to refuse services
to client as to goals or behaviors that conflict with counselor’s or
therapist’s sincerely held principles.
WORKERS’ COMP APPEALS PANEL
WORKERS’ COMPENSATION: When employee injured his spine,
pelvis, and shoulder in 2003 while working for employer, trial court
determined in 2007 that employee was permanently and totally disabled as
result of work-related injury and that employer was responsible for
authorized future medical treatment directly related to work-related injury,
and employee filed motion in 2013 to compel medical benefits, asserting

that employer had refused to pay for medical treatment determined to be
reasonable and necessary by Dr. Workman, his authorized treating
physician, evidence did not preponderate against trial court’s decision that
Dr. Hazlewood, who was designated to review case as part of utilization
review appeal process, sufficiently rebutted presumption that treatment in
dispute prescribed by Workman was reasonable and necessary; Harville v.
Emerson Electric Co., 36 TAM 34-4 (WC 2011), does not stand for
proposition that presumption afforded to treating physician’s opinion can
only be overcome by physician who has examined employee and whose
opinions have been subject to cross-examination; while these may be
factors for trial court to consider, they may not be dispositive in every case.
Walker v. G.UB.MK Constructors, 5/2/16, Knoxville, Davis, 10 pages.
http://www.tncourts.gov/sites/default/files/walkerdouglas_opinion__judgment.pdf

COURT OF APPEALS
TORTS: In suit by former general sessions judge (plaintiff) against
television station and its employee arising from two news stories –
broadcast on 7/19/10 questioned whether plaintiff was being investigated
by Tennessee Court of Judiciary and broadcast on 2/28/11 questioned
whether judge hired unlicensed individual to act as psychologist for drug
court program – trial court properly granted defendants summary
judgment on claims of false light invasion of privacy when standard of
actual malice was not met. Eisenstein v. WTVF-TV, 5/3/16, Nashville,
Bennett, 19 pages.
http://www.tncourts.gov/sites/default/files/eisenstein.danielb.opn_.pdf

ESTATES & TRUSTS: When decedent executed trust creating
revocable trust and designating herself as trustee of trust, decedent
executed limited durable power of attorney designating bank as her
attorney-in-fact, decedent executed amended trust naming bank as
successor trustee and will naming bank as executor, after decedent’s
death, bank was appointed executor of will and distributed assets of estate,
and beneficiary of trust filed suit alleging that bank mismanaged trust,
even though bank had power to convey decedent’s property to trust,
pursuant to durable power of attorney, plaintiff did not establish that bank
had any duty to do so as trustee in effort to avoid probate; bank did not
breach duty to plaintiff by failing to liquidate bank stock and diversify
portfolio when beneficiary had executed written documentation electing

in-kind distribution of stocks in estate, acknowledging that bank would
continue to hold “these securities” for his benefit, plaintiff’s actions over
course of next year were consistent with bank’s understanding of in-kind
election letter, decedent’s family had owned these stocks for years, and
they continued to pay large dividends to trust during administration
period, and bank did not have mandatory duty to diversify because it
“reasonably determine[d] that, because of special circumstances, purposes
of trust [were] better served without diversifying.” Glass v. SunTrust
Bank, 5/4/16, Memphis, Gibson, 20 pages.
http://www.tncourts.gov/sites/default/files/glassjohnd.opn_.pdf

FAMILY LAW: In case in which father filed petition to modify parties’
permanent parenting plan to make him primary residential parent, which
was granted by trial court, because trial court applied erroneous legal
standard in making determination of material change of circumstances,
trial court’s order is vacated and remanded; trial court’s statement of law
that under present law, change of material circumstances may have
actually been anticipated, is applicable to modifications of parenting
schedule, not to modifications of primary residential parent; trial court’s
statement that change of circumstances could arise from changes such as
“a change in employment or a change in marital status” is incorrect – trial
court applied standard set out in TCA 36-6-101(a)(2)(C), subsection
governing modifications of residential parenting schedule that specifically
lists “significant changes in the parent’s living or working condition that
significantly affect parenting,” which applies to modification of residential
parenting schedule, not modification of primary residential parent, which is
governed by TCA 36-6-101(a)(2)(B). Newberry v. Newberry, 5/2/16,
Knoxville, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/newberryaopn.pdf

FAMILY LAW: In case in which juvenile court entered order terminating
father’s parental rights to his two children, juvenile court’s failure to grant
father’s request for appointed counsel during earlier dependency and
neglect proceeding does not warrant reversal of juvenile court’s
termination order when any alleged deficiencies in dependency and neglect
proceedings was remedied by protections afforded by termination
proceeding; juvenile court properly found that ground of wanton disregard
was proven against father and that termination of father’s parental rights
was in children’s best interest. In re Aniston M., 5/5/16, Knoxville,
Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/inreanistonmopn.pdf

COURT OF CRIMINAL APPEALS
EVIDENCE: In rape of child case, trial court did not err by admitting
victim’s forensic interview provided that victim testified and was available
for cross-examination; TCA 24-7-123 provides for admissibility of video
recording of forensic interview of child under age of 13 during which child
described any act of sexual contact performed on or with child if certain
requirements are met, i.e., child testifies, video recording possesses
particularized guarantees of trustworthiness, and interview was conducted
by forensic interviewer who met certain qualifications at time video
recording was made. State v. Tyler, 4/29/16, Jackson, Glenn, 13 pages.
http://www.tncourts.gov/sites/default/files/tylerjustinopn.pdf

CRIMINAL PROCEDURE: In aggravated robbery case in which
defendant was convicted of stealing vehicle, special jury instruction on
when “taking” of car occurred was not required when trial judge instructed
jury on aggravated robbery, which included “temporal proximity”
language suggested in Tennessee Pattern Jury Instructions. State v. Harris,
5/3/16, Jackson, Thomas, 15 pages.
http://www.tncourts.gov/sites/default/files/harrisjosephopn.pdf

CRIMINAL PROCEDURE: In DUI case, trial court erred in granting
defendant’s motion to suppress evidence obtained from traffic stop when
officer had reasonable suspicion to stop defendant – officer testified that he
stopped defendant’s vehicle after observing defendant driving on uphill
curves of mountain at high rate of speed, after officer turned on his
headlights but before he turned on his blue lights, defendant pulled her car
to side of road, and when officer approached defendant’s car, she
apologized to him and said that she knew she was speeding. State v.
Neumann, 5/4/16, Knoxville, Williams, Page not participating, 4 pages.
http://www.tncourts.gov/sites/default/files/neumannsa.pdf

PUBLIC CHAPTERS
COMMERCIAL LAW: No counselor or therapist providing counseling
or therapy services will be required to counsel or serve client as to goals,
outcomes, or behaviors that conflict with sincerely held principles of
counselor or therapist, provided that therapist or counselor coordinates

referral of client to another counselor or therapist who will provide
counseling or therapy. 2016 PC 926, effective 4/27/16, 2 pages.
http://share.tn.gov/sos/acts/109/pub/pc0926.pdf

FAMILY LAW: Four temporary injunctions will go into effect against
both parties upon filing of petition related to child custody. 2016 PC 734,
effective 7/1/16, 3 pages.
http://share.tn.gov/sos/acts/109/pub/pc0734.pdf

CIVIL PROCEDURE: Statute of limitation is extended for civil actions
based on injury or illness resulting from child sexual abuse that occurred
when individual was minor. 2016 PC 737, effective 4/7/16, 3 pages.
http://share.tn.gov/sos/acts/109/pub/pc0737.pdf

COURT OF WORKERS’ COMPENSATION CLAIMS
WORKERS’ COMPENSATION: When 76-year-old employee slipped
on landing at top of stairs as she made her way to break area for lunch, fall
was idiopathic and employee did not carry her burden of proving she
suffered compensable injury when video evidence did not show hazardous
condition or indicate that employee slipped, several other workers were
observed climbing stairs both before and after employee without incident,
and supervisor testified that he inspected area where employee fell almost
immediately after accident occurred and found no hazards in area that
could have caused employee to fall. Portilla v. Tyson Foods Inc.,
11/13/15, Nashville, Baker, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1236&context=utk_workerscomp

WORKERS’ COMPENSATION: Employee has proven that her
authorized physician recommended psychiatric treatment as result of
assault at work, and hence, she has come forward with sufficient evidence
from which to conclude that she is likely to prevail at hearing on merits.
Smith v. Mountain Empire Oil, 11/12/15, Kingsport, Addington, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1249&context=utk_workerscomp

WORKERS’ COMPENSATION: Violations of company policy, not
employee’s physical restrictions, constitute true reason employer
terminated employee, employer demonstrated its good faith in
accommodating restrictions placed because of employee’s work-related
injuries by accommodating his work-related restrictions for approximately

10 months, had employee not committed violations, he would have
continued to earn income in light-duty job in which employer placed him
during preceding 10 months, and hence, employee is not likely to prevail
at hearing on merits of his claim for temporary partial disability benefits.
Miller v. Metaltek Inc., 11/13/15, Chattanooga, Wyatt, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1235&context=utk_workerscomp

WORKERS’ COMPENSATION: In case in which employee alleged in
his Petition for Benefit Determination that he fell and fractured his femur
while walking from his car to door of his workplace, employee is not
likely to succeed at hearing on merits based on documentation contained
in claim file when employee provided no sworn testimony via affidavit to
support his claim, only credible evidence regarding causation comes from
statements attributed to him through medical records, contents of these
statements were insufficient to establish that employee suffered injury by
accident, and, instead, medical records present more questions concerning
cause of injury than answers. Humphrey v. Lewisburg Rubber & Gasket,
11/17/15, Nashville, Baker, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1240&context=utk_workerscomp

REVENUE RULING
TAXATION: Application of Tennessee sales and use tax to sale of
various edible products. Department of Revenue Letter Ruling 16-03,
4/3/16, 7 pages.
http://www.tn.gov/assets/entities/revenue/attachments/16-03.pdf

If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond
to this e-mail or call us at (615) 661-0248 in order to request a copy.
You may also view and download the full text of any state appellate
court decision by accessing the state’s web site by clicking here:
http://www.tncourts.gov

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