TAM Bytes, October 26, 2015
Whether reasonable time filing requirement of TRCP 60.02 applies to petitions seeking relief from void judgment under TRCP 60.02(3), what is necessary for injured worker to qualify for medical benefits for alleged aggravation of pre-existing condition, reversible error in admitting evidence of other crimes committed by defendant, and more from Tennessee's appellate courts.
Content
TAM-BYTES
October 26, 2015
Vol. 18, No. 43
TAM Webinars
“Amendments to Federal E-Discovery Rules Take Effect December 1:
Are You Ready?,” 60-minute webinar presented by Tom Shaw, Assistant
General Counsel with CCA Legal Department in Nashville and Russell
Taber, with Riley Warnock & Jacobson in Nashville, on Tuesday,
December 1, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Engaging Clients Online: Attorney Guidelines for Websites, Blogging,
and Social Media,” 60-minute webinar presented by Vincent J. “V.J.”
Graffeo, Birmingham attorney, on Thursday, December 3, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Procedural Rules in Tennessee – Using Motions to Enhance Your
Practice,” 60-minute webinar presented by John Elder, with Paine
Bickers in Knoxville, on Tuesday, December 8, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
“Judgment Collection in Tennessee: Steps to Take When the Judgment
Debtor Files Bankruptcy,” 60-minute webinar presented by Griffin
Dunham, with Emerge Law in Nashville, on Wednesday, December 9, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Friends and Followers: An Attorney’s Ethical Use of Social Media in
Tennessee,” 60-minute webinar presented by Eileen Burkhalter Smith,
Disciplinary Counsel with the Board of Professional Responsibility, on
Tuesday, December 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of DUAL credit
For more information or to register, call (800) 727-5257 or visit www.mleesmith.com
TAM On-Site Events
Family Law Conference for Tennessee Practitioners
WHEN: Thursday & Friday, December 3 & 4
WHERE: Nashville – Nashville School of Law
CLE: Earn all your CLE for 2015 – up to 15 hours of GENERAL credit
and 3 hours of DUAL credit!!
FACULTY: Judge Robert L. Childers, circuit court, Shelby County;
Judge Phillip Robinson, circuit court, Davidson County; Judge Joseph
Woodruff, circuit court, 21st Judicial District (Hickman, Lewis, Perry, and
Williamson counties); and Judge Thomas Wright, circuit court, 3rd Judicial
Circuit (Greene, Hamblen, Hancock, and Hawkins counties); along with
attorneys Amy J. Amundsen, Rice, Amundsen & Caperton PLLC,
Memphis; John J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville;
Cathy Speers Johnson, Thompson Burton PLLC, Nashville; Stanley A.
Kweller, Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville;
Marlene Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr.,
Richter & Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney;
Greg Smith, Stites & Harbison PLLC, Nashville; Jason Talley, Cheatham,
Palermo & Garrett Law; and Jacob Thorington, Cheatham, Palermo &
Garrett Law, Nashville
HIGHLIGHTS: Protecting a client’s separate assets; valuing and dividing
marital property; access to mental health records in a custody case; special
issues in military divorce; practical tips from judges on issues such as
attorney fees, contempt, and child custody modification; marketing yourself
and your law firm; social media tips and tricks; domestic violence cases and
mediation; cohabiting couples and same-sex marriages; attorney fees in
family matters and contempt; case law/legislative update; and ethical
considerations in family law.
To learn more or to register, visit: http://www.mleesmith.com/family-law-15
Attorney Technology Conference
WHEN: Friday, December 11
WHERE: Nashville – Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Judge Thomas Brothers, Davidson County Circuit Court;
David Anthony, Bone McAllester Norton PLLC, Nashville; André J.
Bahou, Bahou Law PLC, Brentwood; Ian Bourgoine, Belmont University
College of Law, Nashville; Nancy Eady, Morris, Haynes, Wheeles,
Knowles, & Nelson, Alexander City, AL; William M. Jeter, Heaton and
Moore PC, Memphis; Tom Shaw, Assistant General Counsel, CCA Legal
Department; and Russell Taber, Riley Warnock & Jacobson PLC, Nashville
HIGHLIGHTS: Practical tech tips: Recovering data, archiving and preserving
data, and sharing and retrieving data; time-saving tools that every attorney
should have in his or her technology toolkit; how to make your social media
evidence usable at trial; a judge’s perspective on technology in the courtroom
and e-discovery; how to find free legal research sites and free case law; tips and
strategies for collecting social media evidence to use at trial; how to find
“practice tools,” such as sample forms, contracts, briefs, and settlements; update
on new federal e-discovery rules; how to use blogs and social media to grow
your practice; and ethical issues inherent in “cloud computing”
To learn more or to register, visit: www.mleesmith.com/tech-2015
IN THIS WEEK’S TAM-Bytes
Supreme Court says reasonable time filing requirement of TRCP
60.02 does not apply to petitions seeking relief from void judgments
under TRCP 60.02(3) and that relief from void judgment should be
denied if party seeking relief, after having had actual notice of
judgment, manifested intention to treat judgment as valid, and if
granting relief would impair another person’s substantial interest of
reliance on judgment;
Workers’ Comp Appeals Board rules trial court erred in relying on
Trosper v. Armstrong Wood Products Inc. in light of recent
amendments to TCA 50-6-102(13) and specifies what is necessary
for injured worker to qualify for medical benefits for alleged
aggravation of pre-existing condition;
Court of Appeals says TRCP 15.02 is not proper vehicle for
amendment to add party-defendant; and
Court of Criminal Appeals reverses convictions for aggravated
robbery, attempted aggravated robbery, and two counts of aggravated
assault, when trial court erred in admitting evidence of other crimes
committed by defendant, i.e., carjacking/shooting.
SUPREME COURT
CIVIL PROCEDURE: In case in which trial court granted mother relief
under TRCP 60.02(3) from default judgment terminating her parental
rights, even though mother did not seek relief from void judgment until
more than eight years after it was entered, default judgment was void for
lack of personal jurisdiction when father’s constructive service by
publication on mother was ineffective; reasonable time filing requirement
of TRCP 60.02 does not apply to petitions seeking relief from void
judgments under TRCP 60.02(3); relief from void judgment should be
denied if two exceptional circumstances exist – party seeking relief, after
having had actual notice of judgment, manifested intention to treat
judgment as valid, and if granting relief would impair another person’s
substantial interest of reliance on judgment. Turner v. Turner, 10/21/15,
Jackson, Clark, unanimous, 31 pages.
http://www.tncourts.gov/sites/default/files/turnerk.opn_.pdf
WORKERS’ COMP PANEL
CIVIL PROCEDURE: When employee suffered work-related injury to
both knees in 2004, she settled claim in 2009, settlement order required
employer to provide future medical treatment for her knee injuries,
employee fell at work and hurt both knees again on 2/6/11, she reported
injury and sought medical attention from orthopedic surgeon who had
treated her throughout years following first injury, doctor treated her with
steroid injections and physical therapy but employee did not get same relief
that she got from same treatment following first injury, doctor recommended
bilateral knee replacement in 7/11, when employer refused to pay for
surgery, employee filed motion in general sessions court in Warren County
seeking to compel employer to cover expense under its continuing
obligations in 2009 settlement, court found that need for knee replacements
was causally connected to 2004 injury and treatment was covered by
medical provisions of 2009 order, employee filed action seeking benefits for
2/11 fall, and employer filed action on 3/22/12 in chancery court seeking
declaration of rights of parties in relation to 2/11 fall, trial court erred in
ruling that claim for compensation was barred by doctrines of judicial and
equitable estoppel; employee’s position in Warren County case that her knee
replacements were covered by continuing medical provisions settling 2004
case does not amount to assertion that she did not sustain any injuries from
2011 accident, and hence, judicial estoppel is not bar to her claim; as there is
no evidence that employer changed its position in reliance on employee’s
position in prior case, there is no basis for equitable estoppel claim.
Vanderbilt University v. Jones, 10/19/15, Nashville, Cantrell, 7 pages.
http://www.tncourts.gov/sites/default/files/vandy-jones_opn__jo.pdf
WORKERS’ COMP APPEALS BOARD
WORKERS’ COMPENSATION: When employee fell onto his left side
after stepping backward onto pallet jack, employer accepted accident as
compensable and authorized certain medical treatment but denied that
employee suffered compensable left hip injury, treating physician
diagnosed left hip osteoarthritis and recommended hip replacement surgery,
and trial court concluded that employee was entitled to medical benefits for
left hip, including hip replacement surgery, based on finding that
employee’s pre-existing degenerative condition had been aggravated by
work injury and that such aggravation was primarily caused by
compensable accident, trial court erred in relying on Trosper v. Armstrong
Wood Products Inc., 273 SW3d 598 (Tenn. 2008), in light of recent
amendments to TCA 50-6-102(13), but error was harmless; to qualify for
medical benefits at interlocutory hearing pursuant to TCA 50-6-102(13)(A),
injured worker who alleges aggravation of pre-existing condition must offer
evidence that aggravation arose primarily out of and in course and scope of
employment; employee must come forward with sufficient evidence from
which trial court can determine that employee would likely establish, to
reasonable degree of medical certainty, that work accident contributed more
than 50% in causing aggravation, considering all causes; aggravation or
exacerbation need not be permanent for injured worker to qualify for
medical treatment reasonably necessitated by aggravation; evidence
presented to date does not preponderate against trial court’s determination
that employee is likely to prevail at hearing on merits, and that employee is
entitled to authorized, reasonable and necessary medical treatment as
recommended by doctor who attributed need for surgery to work accident.
Miller v. Lowe’s Home Centers Inc., 10/21/15, Conner, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1214&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1184&context=utk_workerscomp
COURT OF APPEALS
TORTS: In suit by former Chief of Staff for Tennessee Republican Party
against Charles Fleischmann and his campaign advertising consultant to
recover for allegedly false and defamatory statements made in course of
Fleischmann’s campaign for election to U.S. Congress, trial court properly
granted defendants summary judgment; defendants demonstrated that
undisputed facts negated element of actual malice which is essential to
defamation and false light claims against public figure. Winslow v.
Saltsman, 10/21/15, MS, Dinkins, 16 pages.
http://www.tncourts.gov/sites/default/files/winslowm.opn_.pdf
FAMILY LAW: Even if parent, in termination of parental rights
proceeding, has made number of commendable changes to his or her
lifestyle, this alone may not be sufficient to establish that it is in child’s best
interest for parent to retain his or her parental rights, especially when
parent’s positive change in behavior occurs at eleventh hour. In re Kaedince
M., 10/19/15, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/inrekaedincemopn.pdf
FAMILY LAW: Evidence did not support termination of father’s parental
rights on ground of substantial non-compliance with requirements of
permanency plan when father’s non-compliance with requirements that he
understood under permanency plan was substantial; although parenting
class attended by father was ultimately rejected as insufficient by
Department of Children’s Services (DCS), nothing in permanency plan put
father on notice of DCS’s requirements for acceptable parenting class;
although DCS did not receive notice of father’s completion of several
mental health and drug assessments, this failure alone is not sufficient to
constitute substantial non-compliance in this case. In re Abbigail C.,
10/21/15, WS at Knoxville, Stafford, 38 pages.
http://www.tncourts.gov/sites/default/files/inreabbigailcopn.pdf
CIVIL PROCEDURE: TRCP 15.02 is not proper vehicle for amendment
to add party-defendant when nothing in TRCP 15.02 contemplates that it
may be utilized to add additional parties that were not originally named in
pleadings, simply because proof at trial may show that non-party should
have been named party to lawsuit. City of Oak Ridge v. Levitt, 10/21/15, WS
at Knoxville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/oakridgeopn.pdf
GOVERNMENT: Plaintiff-attorney is entitled to receive fees he was
charged by attorney he hired, if any, but he may not recover fees for
representing himself in Tennessee Public Records Act (TPRA) case;
plaintiff-attorney’s own time and efforts in case are not recoverable in TPRA
case as discretionary costs; photocopying expenses are not recoverable in
TPRA case under TCA 10-7-505(g) of TPRA and/or TRCP 54. Sutton v.
Bedford County Sheriff Department, 10/19/15, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/suttont.opn_.pdf
CRIMINAL SENTENCING: When inmate pled guilty to two counts of
attempted rape of child and two counts of incest and was sentenced to 20
years with parole eligibility after serving 30% of his sentence, apparently
because of his good behavior, parole board considered inmate for release
on parole after he had served only 20% of his sentence, Board denied
inmate parole based solely on its finding that “[t]he release from custody at
this time would depreciate seriousness of crime of which offender stands
convicted or promote disrespect of the law,” and deferred review of is
parole application for five years, inmate filed petition for common law
certiorari, and trial court affirmed parole board’s decision, parole board
acted arbitrarily in deferring further review of inmate’s parole application
beyond time when he would have otherwise been parole eligible – at 30%
of his 20-year sentence; because inmate has already served more than 30%
of his 20-year sentence, he should immediately be granted new parole
hearing. Brennan v. Board of Parole for Tennessee, 10/21/15, MS,
Goldin, 6 pages.
http://www.tncourts.gov/sites/default/files/brennanjoseph.opn_.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL LAW: In case in which defendant was convicted of
aggravated robbery, attempted aggravated robbery, and two counts of
aggravated assault, trial court committed reversible error in admitting
evidence of other crimes committed by defendant, i.e., carjacking/shooting,
when state devoted nearly half of its opening statement to discussion of
other crimes, both officers testified extensively about factual circumstances
of crime and their testimony established defendant as perpetrator of shooting
but had little to do with establishing defendant’s identity as perpetrator of
aggravated robbery and aggravated assault, majority of evidence linking two
crimes came from testimony of officers who collected bullets, shell casings,
and defendant’s clothing, and from TBI special agent, and there was no
direct evidence linking casings from two crime scenes; defendant’s
convictions are reversed, and case is remanded for new trial; fingerprints are
not testimonial or communicative in nature, and courts have long recognized
that Fifth Amendment protection against self-incrimination does not extend
to taking of fingerprints; fingerprinting defendant in presence of jury does
not violate his right to fair trial. State v. Sample, 10/21/15, Jackson,
Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/sampleeopn.pdf
CRIMINAL LAW: In case in which defendant was charged with five
counts of attempted first degree murder but was convicted of misdemeanor
reckless endangerment, because misdemeanor reckless endangerment is
not lesser included offense of attempted first degree murder and defendant
made no written or oral request for jury instruction, judgments of
conviction for all five convictions of misdemeanor reckless endangerment
are void, and hence, these five convictions are reversed and dismissed;
defendant’s convictions and sentences for two counts of attempted first
degree murder and one count of employing firearm during commission of
dangerous felony are affirmed; promises of leniency by state officers do
not render subsequent confessions involuntary per se. State v. Campbell,
10/20/15, Knoxville, Thomas, 33 pages.
http://www.tncourts.gov/sites/default/files/campbellcarlosopn.pdf
COURT OF WORKERS’ COMP CLAIMS
WORKERS’ COMPENSATION: Employee was part-time employee of
construction company at time he suffered hernia as he worked for
construction company and others; as part-time employee, weeks employee
worked for construction company are considered in calculating his average
weekly wage – employee earned $3,418 during 10 weeks he worked for
construction company, and hence, his average weekly wage is $342.
Privette v. Privette Construction, 6/30/15, Addington, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1127&context=utk_workerscomp
ATTORNEY GENERAL OPINION
TAXATION: Tax exemption for rural electric cooperatives in TCA 65-25122(a) is unconstitutional because it purports to grant property tax
exemption that is not authorized by Tenn. Const. Art. II, Sec. 28.
Attorney General Opinion 15-71, 10/21/15, 2 pages
http://attorneygeneral.tn.gov/op/2015/op15-71.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
October 26, 2015
Vol. 18, No. 43
TAM Webinars
“Amendments to Federal E-Discovery Rules Take Effect December 1:
Are You Ready?,” 60-minute webinar presented by Tom Shaw, Assistant
General Counsel with CCA Legal Department in Nashville and Russell
Taber, with Riley Warnock & Jacobson in Nashville, on Tuesday,
December 1, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Engaging Clients Online: Attorney Guidelines for Websites, Blogging,
and Social Media,” 60-minute webinar presented by Vincent J. “V.J.”
Graffeo, Birmingham attorney, on Thursday, December 3, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Procedural Rules in Tennessee – Using Motions to Enhance Your
Practice,” 60-minute webinar presented by John Elder, with Paine
Bickers in Knoxville, on Tuesday, December 8, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of GENERAL credit
“Judgment Collection in Tennessee: Steps to Take When the Judgment
Debtor Files Bankruptcy,” 60-minute webinar presented by Griffin
Dunham, with Emerge Law in Nashville, on Wednesday, December 9, at 2
p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
“Friends and Followers: An Attorney’s Ethical Use of Social Media in
Tennessee,” 60-minute webinar presented by Eileen Burkhalter Smith,
Disciplinary Counsel with the Board of Professional Responsibility, on
Tuesday, December 15, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of DUAL credit
For more information or to register, call (800) 727-5257 or visit www.mleesmith.com
TAM On-Site Events
Family Law Conference for Tennessee Practitioners
WHEN: Thursday & Friday, December 3 & 4
WHERE: Nashville – Nashville School of Law
CLE: Earn all your CLE for 2015 – up to 15 hours of GENERAL credit
and 3 hours of DUAL credit!!
FACULTY: Judge Robert L. Childers, circuit court, Shelby County;
Judge Phillip Robinson, circuit court, Davidson County; Judge Joseph
Woodruff, circuit court, 21st Judicial District (Hickman, Lewis, Perry, and
Williamson counties); and Judge Thomas Wright, circuit court, 3rd Judicial
Circuit (Greene, Hamblen, Hancock, and Hawkins counties); along with
attorneys Amy J. Amundsen, Rice, Amundsen & Caperton PLLC,
Memphis; John J. Hollins, Jr., Hollins, Raybin & Weissman PC, Nashville;
Cathy Speers Johnson, Thompson Burton PLLC, Nashville; Stanley A.
Kweller, Jackson, Kweller, McKinney, Hayes, Lewis & Garrett, Nashville;
Marlene Moses, MTR Family Law, PLLC, Nashville; Linley Richter, Jr.,
Richter & Rasberry, P.C., Memphis; Kevin Shepherd, Maryville attorney;
Greg Smith, Stites & Harbison PLLC, Nashville; Jason Talley, Cheatham,
Palermo & Garrett Law; and Jacob Thorington, Cheatham, Palermo &
Garrett Law, Nashville
HIGHLIGHTS: Protecting a client’s separate assets; valuing and dividing
marital property; access to mental health records in a custody case; special
issues in military divorce; practical tips from judges on issues such as
attorney fees, contempt, and child custody modification; marketing yourself
and your law firm; social media tips and tricks; domestic violence cases and
mediation; cohabiting couples and same-sex marriages; attorney fees in
family matters and contempt; case law/legislative update; and ethical
considerations in family law.
To learn more or to register, visit: http://www.mleesmith.com/family-law-15
Attorney Technology Conference
WHEN: Friday, December 11
WHERE: Nashville – Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: Judge Thomas Brothers, Davidson County Circuit Court;
David Anthony, Bone McAllester Norton PLLC, Nashville; André J.
Bahou, Bahou Law PLC, Brentwood; Ian Bourgoine, Belmont University
College of Law, Nashville; Nancy Eady, Morris, Haynes, Wheeles,
Knowles, & Nelson, Alexander City, AL; William M. Jeter, Heaton and
Moore PC, Memphis; Tom Shaw, Assistant General Counsel, CCA Legal
Department; and Russell Taber, Riley Warnock & Jacobson PLC, Nashville
HIGHLIGHTS: Practical tech tips: Recovering data, archiving and preserving
data, and sharing and retrieving data; time-saving tools that every attorney
should have in his or her technology toolkit; how to make your social media
evidence usable at trial; a judge’s perspective on technology in the courtroom
and e-discovery; how to find free legal research sites and free case law; tips and
strategies for collecting social media evidence to use at trial; how to find
“practice tools,” such as sample forms, contracts, briefs, and settlements; update
on new federal e-discovery rules; how to use blogs and social media to grow
your practice; and ethical issues inherent in “cloud computing”
To learn more or to register, visit: www.mleesmith.com/tech-2015
IN THIS WEEK’S TAM-Bytes
Supreme Court says reasonable time filing requirement of TRCP
60.02 does not apply to petitions seeking relief from void judgments
under TRCP 60.02(3) and that relief from void judgment should be
denied if party seeking relief, after having had actual notice of
judgment, manifested intention to treat judgment as valid, and if
granting relief would impair another person’s substantial interest of
reliance on judgment;
Workers’ Comp Appeals Board rules trial court erred in relying on
Trosper v. Armstrong Wood Products Inc. in light of recent
amendments to TCA 50-6-102(13) and specifies what is necessary
for injured worker to qualify for medical benefits for alleged
aggravation of pre-existing condition;
Court of Appeals says TRCP 15.02 is not proper vehicle for
amendment to add party-defendant; and
Court of Criminal Appeals reverses convictions for aggravated
robbery, attempted aggravated robbery, and two counts of aggravated
assault, when trial court erred in admitting evidence of other crimes
committed by defendant, i.e., carjacking/shooting.
SUPREME COURT
CIVIL PROCEDURE: In case in which trial court granted mother relief
under TRCP 60.02(3) from default judgment terminating her parental
rights, even though mother did not seek relief from void judgment until
more than eight years after it was entered, default judgment was void for
lack of personal jurisdiction when father’s constructive service by
publication on mother was ineffective; reasonable time filing requirement
of TRCP 60.02 does not apply to petitions seeking relief from void
judgments under TRCP 60.02(3); relief from void judgment should be
denied if two exceptional circumstances exist – party seeking relief, after
having had actual notice of judgment, manifested intention to treat
judgment as valid, and if granting relief would impair another person’s
substantial interest of reliance on judgment. Turner v. Turner, 10/21/15,
Jackson, Clark, unanimous, 31 pages.
http://www.tncourts.gov/sites/default/files/turnerk.opn_.pdf
WORKERS’ COMP PANEL
CIVIL PROCEDURE: When employee suffered work-related injury to
both knees in 2004, she settled claim in 2009, settlement order required
employer to provide future medical treatment for her knee injuries,
employee fell at work and hurt both knees again on 2/6/11, she reported
injury and sought medical attention from orthopedic surgeon who had
treated her throughout years following first injury, doctor treated her with
steroid injections and physical therapy but employee did not get same relief
that she got from same treatment following first injury, doctor recommended
bilateral knee replacement in 7/11, when employer refused to pay for
surgery, employee filed motion in general sessions court in Warren County
seeking to compel employer to cover expense under its continuing
obligations in 2009 settlement, court found that need for knee replacements
was causally connected to 2004 injury and treatment was covered by
medical provisions of 2009 order, employee filed action seeking benefits for
2/11 fall, and employer filed action on 3/22/12 in chancery court seeking
declaration of rights of parties in relation to 2/11 fall, trial court erred in
ruling that claim for compensation was barred by doctrines of judicial and
equitable estoppel; employee’s position in Warren County case that her knee
replacements were covered by continuing medical provisions settling 2004
case does not amount to assertion that she did not sustain any injuries from
2011 accident, and hence, judicial estoppel is not bar to her claim; as there is
no evidence that employer changed its position in reliance on employee’s
position in prior case, there is no basis for equitable estoppel claim.
Vanderbilt University v. Jones, 10/19/15, Nashville, Cantrell, 7 pages.
http://www.tncourts.gov/sites/default/files/vandy-jones_opn__jo.pdf
WORKERS’ COMP APPEALS BOARD
WORKERS’ COMPENSATION: When employee fell onto his left side
after stepping backward onto pallet jack, employer accepted accident as
compensable and authorized certain medical treatment but denied that
employee suffered compensable left hip injury, treating physician
diagnosed left hip osteoarthritis and recommended hip replacement surgery,
and trial court concluded that employee was entitled to medical benefits for
left hip, including hip replacement surgery, based on finding that
employee’s pre-existing degenerative condition had been aggravated by
work injury and that such aggravation was primarily caused by
compensable accident, trial court erred in relying on Trosper v. Armstrong
Wood Products Inc., 273 SW3d 598 (Tenn. 2008), in light of recent
amendments to TCA 50-6-102(13), but error was harmless; to qualify for
medical benefits at interlocutory hearing pursuant to TCA 50-6-102(13)(A),
injured worker who alleges aggravation of pre-existing condition must offer
evidence that aggravation arose primarily out of and in course and scope of
employment; employee must come forward with sufficient evidence from
which trial court can determine that employee would likely establish, to
reasonable degree of medical certainty, that work accident contributed more
than 50% in causing aggravation, considering all causes; aggravation or
exacerbation need not be permanent for injured worker to qualify for
medical treatment reasonably necessitated by aggravation; evidence
presented to date does not preponderate against trial court’s determination
that employee is likely to prevail at hearing on merits, and that employee is
entitled to authorized, reasonable and necessary medical treatment as
recommended by doctor who attributed need for surgery to work accident.
Miller v. Lowe’s Home Centers Inc., 10/21/15, Conner, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1214&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1184&context=utk_workerscomp
COURT OF APPEALS
TORTS: In suit by former Chief of Staff for Tennessee Republican Party
against Charles Fleischmann and his campaign advertising consultant to
recover for allegedly false and defamatory statements made in course of
Fleischmann’s campaign for election to U.S. Congress, trial court properly
granted defendants summary judgment; defendants demonstrated that
undisputed facts negated element of actual malice which is essential to
defamation and false light claims against public figure. Winslow v.
Saltsman, 10/21/15, MS, Dinkins, 16 pages.
http://www.tncourts.gov/sites/default/files/winslowm.opn_.pdf
FAMILY LAW: Even if parent, in termination of parental rights
proceeding, has made number of commendable changes to his or her
lifestyle, this alone may not be sufficient to establish that it is in child’s best
interest for parent to retain his or her parental rights, especially when
parent’s positive change in behavior occurs at eleventh hour. In re Kaedince
M., 10/19/15, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/inrekaedincemopn.pdf
FAMILY LAW: Evidence did not support termination of father’s parental
rights on ground of substantial non-compliance with requirements of
permanency plan when father’s non-compliance with requirements that he
understood under permanency plan was substantial; although parenting
class attended by father was ultimately rejected as insufficient by
Department of Children’s Services (DCS), nothing in permanency plan put
father on notice of DCS’s requirements for acceptable parenting class;
although DCS did not receive notice of father’s completion of several
mental health and drug assessments, this failure alone is not sufficient to
constitute substantial non-compliance in this case. In re Abbigail C.,
10/21/15, WS at Knoxville, Stafford, 38 pages.
http://www.tncourts.gov/sites/default/files/inreabbigailcopn.pdf
CIVIL PROCEDURE: TRCP 15.02 is not proper vehicle for amendment
to add party-defendant when nothing in TRCP 15.02 contemplates that it
may be utilized to add additional parties that were not originally named in
pleadings, simply because proof at trial may show that non-party should
have been named party to lawsuit. City of Oak Ridge v. Levitt, 10/21/15, WS
at Knoxville, Stafford, 14 pages.
http://www.tncourts.gov/sites/default/files/oakridgeopn.pdf
GOVERNMENT: Plaintiff-attorney is entitled to receive fees he was
charged by attorney he hired, if any, but he may not recover fees for
representing himself in Tennessee Public Records Act (TPRA) case;
plaintiff-attorney’s own time and efforts in case are not recoverable in TPRA
case as discretionary costs; photocopying expenses are not recoverable in
TPRA case under TCA 10-7-505(g) of TPRA and/or TRCP 54. Sutton v.
Bedford County Sheriff Department, 10/19/15, MS, Bennett, 5 pages.
http://www.tncourts.gov/sites/default/files/suttont.opn_.pdf
CRIMINAL SENTENCING: When inmate pled guilty to two counts of
attempted rape of child and two counts of incest and was sentenced to 20
years with parole eligibility after serving 30% of his sentence, apparently
because of his good behavior, parole board considered inmate for release
on parole after he had served only 20% of his sentence, Board denied
inmate parole based solely on its finding that “[t]he release from custody at
this time would depreciate seriousness of crime of which offender stands
convicted or promote disrespect of the law,” and deferred review of is
parole application for five years, inmate filed petition for common law
certiorari, and trial court affirmed parole board’s decision, parole board
acted arbitrarily in deferring further review of inmate’s parole application
beyond time when he would have otherwise been parole eligible – at 30%
of his 20-year sentence; because inmate has already served more than 30%
of his 20-year sentence, he should immediately be granted new parole
hearing. Brennan v. Board of Parole for Tennessee, 10/21/15, MS,
Goldin, 6 pages.
http://www.tncourts.gov/sites/default/files/brennanjoseph.opn_.pdf
COURT OF CRIMINAL APPEALS
CRIMINAL LAW: In case in which defendant was convicted of
aggravated robbery, attempted aggravated robbery, and two counts of
aggravated assault, trial court committed reversible error in admitting
evidence of other crimes committed by defendant, i.e., carjacking/shooting,
when state devoted nearly half of its opening statement to discussion of
other crimes, both officers testified extensively about factual circumstances
of crime and their testimony established defendant as perpetrator of shooting
but had little to do with establishing defendant’s identity as perpetrator of
aggravated robbery and aggravated assault, majority of evidence linking two
crimes came from testimony of officers who collected bullets, shell casings,
and defendant’s clothing, and from TBI special agent, and there was no
direct evidence linking casings from two crime scenes; defendant’s
convictions are reversed, and case is remanded for new trial; fingerprints are
not testimonial or communicative in nature, and courts have long recognized
that Fifth Amendment protection against self-incrimination does not extend
to taking of fingerprints; fingerprinting defendant in presence of jury does
not violate his right to fair trial. State v. Sample, 10/21/15, Jackson,
Williams, 14 pages.
http://www.tncourts.gov/sites/default/files/sampleeopn.pdf
CRIMINAL LAW: In case in which defendant was charged with five
counts of attempted first degree murder but was convicted of misdemeanor
reckless endangerment, because misdemeanor reckless endangerment is
not lesser included offense of attempted first degree murder and defendant
made no written or oral request for jury instruction, judgments of
conviction for all five convictions of misdemeanor reckless endangerment
are void, and hence, these five convictions are reversed and dismissed;
defendant’s convictions and sentences for two counts of attempted first
degree murder and one count of employing firearm during commission of
dangerous felony are affirmed; promises of leniency by state officers do
not render subsequent confessions involuntary per se. State v. Campbell,
10/20/15, Knoxville, Thomas, 33 pages.
http://www.tncourts.gov/sites/default/files/campbellcarlosopn.pdf
COURT OF WORKERS’ COMP CLAIMS
WORKERS’ COMPENSATION: Employee was part-time employee of
construction company at time he suffered hernia as he worked for
construction company and others; as part-time employee, weeks employee
worked for construction company are considered in calculating his average
weekly wage – employee earned $3,418 during 10 weeks he worked for
construction company, and hence, his average weekly wage is $342.
Privette v. Privette Construction, 6/30/15, Addington, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1127&context=utk_workerscomp
ATTORNEY GENERAL OPINION
TAXATION: Tax exemption for rural electric cooperatives in TCA 65-25122(a) is unconstitutional because it purports to grant property tax
exemption that is not authorized by Tenn. Const. Art. II, Sec. 28.
Attorney General Opinion 15-71, 10/21/15, 2 pages
http://attorneygeneral.tn.gov/op/2015/op15-71.pdf
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