TAM Bytes, September 9, 2013
Content
TAM-BYTES September 9, 2013 Vol. 16, No. 36
2013 TAM CLE CALENDAR
Audio Conferences
“Medical Malpractice in Tennessee: Where We Stand in 2013” 60-minute webinar presented by Chris Tardio, Nashville attorney, on Tuesday, September 24 at 10 a.m. (Central), 11 a.m. (Eastern). “Oops, It Happened Again: Inadvertent Disclosure Under Federal Rule of Evidence 502,” 60-minute audio conference presented by Wayne Morse, Birmingham attorney, on Thursday, October 10 at 10 a.m. (Central), 11 a.m. (Eastern). “Fair Credit Reporting Act: Add a Revenue Stream to Your Firm and Make Happy Clients,” 60-minute webinar presented by John Watts, Birmingham attorney, on Tuesday, October 15 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com
Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate
PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the state’s top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the state’s trust laws as well as the conservatorship law.
MEMPHIS FACULTY (Oct. 18): Judge Karen D. Webster, Shelby County Probate
Court; William (Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.
KNOXVILLE FACULTY (Oct. 25): Donald Farinato, Holbrook Peterson Smith;
Monica Franklin, CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.
NASHVILLE FACULTY (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate
LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on “HOT” topics impacting your practice, including: 2013 changes to the state’s trust laws; 2013 changes to the state’s conservatorship laws’ updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.
FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs Lyle,
Judge Tim Easter, attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference
TENNESSEE WORKERS’ COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 at the Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 – from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers’ comp system; hear about issues arising with future medical benefits, causation, and pain management; hear from Tennessee Supreme Court Justice Connie Clark, who will be a part of a panel discussion that will include a plaintiff’s attorney, a defense attorney, and an administrative attorney from the Department of Labor and Workforce Development; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13
IN THIS WEEK’S TAM-Bytes Supreme Court, in suit arising out of 2002 automobile accident in which force of collision caused lap seatbelt to damage 6-year-old child’s spine, rules material evidence supported jury’s award of $43.8 million for compensatory damages, 15% of which was apportioned to car manufacturer; Supreme Court, in case of first impression, holds when grandparent or parent initiates proceeding to modify or terminate court-ordered grandparent visitation, burden of proof is upon grandparent or parent seeking modification or termination to demonstrate by preponderance of evidence both that material change in circumstances has occurred and that change in circumstances makes requested modification or termination of grandparent visitation in child’s best interests; Supreme Court holds petitioner was not entitled to seek post-conviction relief from criminal contempt findings; Supreme Court revises Rule 9 governing disciplinary enforcement with respect to attorneys effective January 1, 2014; Supreme Court broadens scope of Rule 25 governing protection of client interests by extending definition of “lawyer” to encompass all lawyers practicing in Tennessee and increasing time within which client may file claim for reimbursement of losses caused by lawyer’s dishonest conduct; Court of Appeals affirms summary judgment in favor of owners of sports bar in suit by widow on behalf of her husband who was shot and killed by patron at bar; In case in which parties lived together for six years and worked jointly on number of business ventures, but never married, Court of Appeals upholds trial court’s finding that although no implied partnership existed between parties, plaintiff established by preponderance of evidence that she has property ownership interest in all of properties acquired during relationship; In case in which grandparents sought visitation with child, Court of Appeals says that although very young age of child likely was critical factor in grandparents’ inability to present proof that termination of relationship would probably result in substantial harm to child, that neither lessens nor eliminates obligation placed upon grandparents to present such proof; and Court of Criminal Appeals rules trial court does not have power to limit number of bail bondsmen within its jurisdiction absent legislative grant of authority.
SUPREME COURT DAMAGES: In suit arising out of 2002 automobile accident in which force of collision caused lap seatbelt to damage 6-year-old child’s spine, material evidence supported jury’s award of $43.8 million – $4.3 million in economic damages and $39.5 million in non-economic damages – for compensatory damages, 15% of which was apportioned to car manufacturer; Court of Appeals erred in remitting verdict to $12.9 million; while at high end of range of reasonableness, verdict was not excessive considering evidence in light most favorable to plaintiff, assuming truth of all that supports verdict, allowing all reasonable inferences and discarding any inference to contrary, affording all due respect to life-charging injuries child suffered, and considering verdicts in similar cases. Meals v. Ford Motor Co., 8/30/13, Jackson, Lee, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/mealsaundreyopn_0.pdf
FAMILY LAW: When grandparent or parent initiates proceeding to modify or terminate court-ordered grandparent visitation, courts should apply burden of proof and standards typically applied in parent-vs-parent visitation modification cases, thus, burden of proof is upon grandparent or parent seeking modification or termination to demonstrate by preponderance of evidence both that material change in circumstances has occurred and that change in circumstances makes requested modification or termination of grandparent visitation in child’s best interests; grandmother, as adoptive parent of child’s biological father, an d her second husband, as stepparent of child’s biological father, qualify as “grandparents” under Grandparent Visitation Statute. Lovlace v. Copley, 9/6/13, Nashville, Clark, unanimous, 41 pages.
http://www.tncourts.gov/sites/default/files/lovlacen_opn.pdf
CRIMINAL PROCEDURE: Finding of criminal contempt pursuant to TCA 29-9102 is not criminal conviction, and hence, petitioner was not entitled to seek postconviction relief from criminal contempt findings in agreed order. Baker v. State, 9/6/13, Nashville, Clark, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/bakertropn_0.pdf
PROFESSION OF LAW: Revised Rule 9 governing disciplinary enforcement with respect to attorneys, which takes effect 1/1/14, includes requirement of order of Supreme Court for reinstatement from all attorney suspensions, provisions regarding appointment of receiver attorney for attorneys who become unable to practice law, provisions for selection of and duties of practice monitors, and assessment of costs of disciplinary proceedings to attorneys who are subject to discipline. In re Adoption of Amended Supreme Court Rule 9, 8/30/13, Nashville, 64 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_9_with_apendix_-_830-2013.pdf
PROFESSION OF LAW: Supreme Court Rules 21, 33, and 43 are amended as necessary to make those Rules consistent with revised Rule 9. In re Adoption of Amendments to Supreme Court Rules 21, 33, & 43, 8/30/13, Nashville, 4 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rules_21_33_and_43_-_830-2013_0.pdf
PROFESSION OF LAW: Amended Rule 25 governing protection of client interests extends definition of “lawyer” to encompass all lawyers practicing in Tennessee and increases time from one to three years for clients to file claims for reimbursement of losses caused by lawyer’s dishonest conduct. In re Supreme Court Rule 25, 8/30/13, Nashville, 24 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_25_-_8-30-2013.pdf
GOVERNMENT: Supreme Court Rule 26, which governs use of videotape equipment of court recordings and applies only to Sixth Circuit Court in Davidson County, is amended to reflect changes in technology since initial adoption of rule in 1993. In re Amendment to Supreme Court Rule 26, 9/3/13, Nashville, 5 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_26_-_9-3-2013.pdf
CRIMINAL PROCEDURE: Rule 13 is amended to permit Administrative Office of Courts to subject claims for compensation and reimbursement by attorneys for representing indigents to reduction for any unpaid costs assessed against attorney as result of disciplinary proceedings against attorney pursuant to Rule 9. In re Adoption of Amendment to Supreme Court Rule 13, 9/4/13, Nashville, 3 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supeme_court_rule_13_with_appendix_-_94-2013.pdf
WORKERS’ COMP PANEL WORKERS’ COMPENSATION: Evidence did not preponderate against trial court’s award of 48% permanent disability, six times impairment rating of 8%, when employee, who was 38 years old at time of 2012 trial, had work history consisting entirely of unskilled or semi-skilled jobs, while employee was high school graduate and had obtained online training since her work injury in medical coding and billing, she testified that working in this field was not feasible because such work would require her “to sit at the computer all day and look down and movements of your neck and stuff up and down,” vocational expert testified that employee had 90 to 95% loss of access to open labor market as result of her shoulder injury, physical restrictions doctors imposed, in particular limitations on reaching, effectively prevented employee from engaging in all, or nearly all, of jobs she had performed prior to injury, and consistent with those restrictions, employee reported difficulty lifting and performing
sustained activity with her arms. Dixon v. Nissan North America Inc., 9/5/13, Nashville, Cantrell, 10 pages.
http://www.tncourts.gov/sites/default/files/dixonvnissan_opn__jo.pdf
COURT OF APPEALS TORTS: In suit by widow on behalf of her husband who was shot and killed by patron at sports bar, trial court properly granted defendants, owners of bar, summary judgment when defendants established that there was nothing in outward behavior of shooter or in any knowledge of past behavior that would have triggered sort of foreseeability that arises when individual’s conduct signals possibility of criminal intent. Goeser v. Live Holdings Corp., 9/4/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/goesern_opn1.pdf
FAMILY LAW: In case in which parties (Ray and LaSonya) lived together for six years and worked jointly on number of business ventures during that period, but never married, evidence did not preponderate against trial court’s finding that although no implied partnership existed between parties, LaSonya established by preponderance of evidence that she has property ownership interest in all of properties acquired during relationship which were owned by either party. Morrow v. McClain, 8/29/13, MS, Cottrell, 8 pages.
http://www.tncourts.gov/sites/default/files/morrowlopn_1.pdf
FAMILY LAW: In case in which grandparents (father and stepmother of child’s mother) filed petition to establish visitation rights with 18-month-old child – child had visited often with grandparents, but mother ended visits after falling out with her father – although grandparents and child did have significant existing relationship, grandparents failed to prove that cessation of this relationship would pose danger of substantial harm to child; mere fact that significant existing relationship exists will not suffice for showing of substantial harm – statute requires grandparents to prove not just existence of significant relationship with child but also that termination of that significant relationship would pose danger of substantial harm to child; expert testimony is not required to prove either significant existing relationship with child or that termination of that relationship is likely to result in severe emotional harm to child; although very young age of child likely was critical factor in grandparents’ inability to present proof that termination of relationship likely would result in substantial harm to child, that neither lessens nor eliminates obligation placed upon grandparents to present such proof. Huffman v. Huffman, 8/30/13, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/huffmanbwopn.pdf
CIVIL PROCEDURE: In case in which trial court dismissed mother’s petition for divorce, after finding that marriage was void due to mother’s pre-existing marriage in Chile, and mother filed TRCP 60.02 motion with supporting documentation purporting to show that she was never legally married in Chile, trial court erred in refusing to set hearing and in dismissing mother’s TRCP 60.02 motion to set aside final judgment; if trial court’s dismissal of mother’s motion is construed as sua sponte grant of motion to dismiss for failure to state claim upon which relief can be granted, then trial court erred in summarily dismissing TRCP 60.02 motion without any indication that trial court considered either sufficiency or merits of mother’s motion, and if trial court’s dismissal of mother’s TRCP 60.02 motion is construed as involuntary dismissal pursuant to TRCP 41.01(1), dismissal was in error when there was no evidence that mother failed to prosecute action. Gonzalez v. Gonzalez, 9/5/13, WS, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/gonzalezcopn.pdf
COURT OF CRIMINAL APPEALS EVIDENCE: In murder case, trial judge did not err in allowing medical examiner to use bed and rope as demonstrative aid during her testimony, which she used not in attempt to create exact duplication of defendant’s re-enactment, but instead to support her opinion that victim’s death was not caused by hanging an d could not have occurred in method described and demonstrated by defendant, and defendant was already well aware of alleged assisted suicide method that medical examiner demonstrated, as he had, himself, demonstrated at length and in great detail same procedure in videotaped re-enactment conducted at his home. State v. Hill, 8/30/13, Knoxville, Glenn, 15 pages.
http://www.tncourts.gov/sites/default/files/hillstanleyopn.pdf
CRIMINAL LAW: In case in which defendant was convicted of 10 counts of aggravated sexual battery, evidence was not sufficient to convict defendant of aggravated sexual battery in Count 6 when victim did not provide any testimony that aligned with election provided by state – bill of particulars filed by state provided that Count 6 occurred during summer of 2004 in living room of defendant’s residence, and state elaborated during closing argument that Count 6 was based upon defendant’s touching victim as she sat on couch watching Disney Channel during summer after she completed fourth grade – and although victim did testify about incident that occurred while she watched Disney Channel, she specified that this incident occurred during summer after fifth grade when she had just started wearing bra; defendant’s conviction of aggravated sexual battery in Count 6 is reversed, and charge dismissed; remaining judgments of trial court are affirmed. State v. Ward, 9/4/13, Knoxville, Witt, 15 pages.
http://www.tncourts.gov/sites/default/files/warddanielopn.pdf
CRIMINAL PROCEDURE: Court may not withhold approval of bondsman without notifying bondsman in writing of action taken and of charges resulting in action and without providing bondsman opportunity to file answer denying charges and to present proof at evidentiary hearing; trial court erred in withholding approval for appellant bail bonding company (Cumberland) to write bonds in criminal courts of Ninth Judicial District; trial court does not have power to limit number of bail bondsmen within its jurisdiction absent legislative grant of authority – all statutes giving trial court power to withhold approval to write bonds focus on bondsman’s insolvency, unprofessional conduct, violation of laws related to bail bonds, or violation of requirements regulating professional bondsmen, none of which were applicable to Cumberland. In re Cumberland Bail Bonding Co., 9/3/13, Knoxville, McMullen, 9 pages.
http://www.tncourts.gov/sites/default/files/cumberlandopn.pdf
JUDICIAL ETHICS OPINION GOVERNMENT: Code of Judicial Conduct does not prohibit judicial candidates from publicizing and self-funding their campaigns prior to 180-day period before primary election for position, but, in doing so, candidates must be mindful that they cannot solicit campaign contributions or appoint campaign committee earlier than 180 days before first applicable primary election, caucus, general, or retention election. Judicial Ethics Committee Opinion 13-01, 8/15/13, 2 pages.
http://www.tncourts.gov/sites/default/files/docs/advisory_opinion_13-01.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 TAM CLE CALENDAR
Audio Conferences
“Medical Malpractice in Tennessee: Where We Stand in 2013” 60-minute webinar presented by Chris Tardio, Nashville attorney, on Tuesday, September 24 at 10 a.m. (Central), 11 a.m. (Eastern). “Oops, It Happened Again: Inadvertent Disclosure Under Federal Rule of Evidence 502,” 60-minute audio conference presented by Wayne Morse, Birmingham attorney, on Thursday, October 10 at 10 a.m. (Central), 11 a.m. (Eastern). “Fair Credit Reporting Act: Add a Revenue Stream to Your Firm and Make Happy Clients,” 60-minute webinar presented by John Watts, Birmingham attorney, on Tuesday, October 15 at 10 a.m. (Central), 11 a.m. (Eastern).
For more information or to register, call (800) 274-6774 or visit us at www.mleesmith.com
Live Events
TENNESSEE REAL ESTATE LAW CONFERENCE WHEN: Friday, October 4 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit. FACULTY: Kim A. Brown, Sherrard & Roe PLC; Robert C. Goodrich Jr., Stites & Harbison, PLLC; Mary Beth Hagan, Hagan & Farrar, PLLC; Brian E. Humphrey, Miller & Martin PLLC; Sean C. Kirk, Bone McAllester Norton PLLC; Jason Lewallen, Bass, Berry & Sims PLC; Madison L. Martin, Stites & Harbison PLLC; Lars E. Schuller, Lewis, King, Krieg & Waldrop, PC
For more information or to register, call (800) 274-6774 or visit www.mleesmith.com/realestate
PROBATE & ESTATE PLANNING CONFRENCE FOR TENNESSEE ATTORNEYS WHEN: Friday, October 18 in MEMPHIS (Memphis Hilton) Friday, October 25 in KNOXVILLE (Crowne Plaza) Friday, November 8 in NASHVILLE (Nashville School of Law) *Earn 7.5 hours of CLE credit, including 1 hour of DUAL credit.
This event features some of the state’s top estate planning and probate practitioners. Your distinguished faculty will explain the very latest developments and strategies. Attendees will receive valuable tips for advanced estate planning using trusts as well as tips for planning opportunities and challenges in drafting wills in light of changes to the federal estate laws. There will be updates on the 2013 changes to the state’s trust laws as well as the conservatorship law.
MEMPHIS FACULTY (Oct. 18): Judge Karen D. Webster, Shelby County Probate
Court; William (Will) Bell Jr., Rainey, Kizer, Reviere & Bell; Aaron Hall, The Bailey Law Firm; Mitchell Lansky, Marks Shipman & Lansky; Stephen McDaniel, Wyatt Tarrant & Combs; John Murrah, Evans Petree; and Pam Wright, West Tennessee Legal Services.
KNOXVILLE FACULTY (Oct. 25): Donald Farinato, Holbrook Peterson Smith;
Monica Franklin, CELA, Elder Law Practice; Scott Griswold, Holbrook Peterson Smith; Robert Marquis, Woolf, McClane, Bright, Allen & Carpenter; Anne McKinney, Anne M. McKinney PC; Joel Roettger, Gentry, Tipton & McLemore; and Al Secor, CapitalMark Bank & Trust.
NASHVILLE FACULTY (Nov. 8): Judge Larry Brandon, General Sessions Court,
Murfreesboro; Rebecca Blair, The Blair Law Firm; Harlan Dodson, Dodson Parker Behm and Capparella; Paul Gontarek, Howard Mobley Hayes & Gontarek; Robert Hazard, Gullett Sanford Robinson & Martin; Andra Hedrick, Gullett Sanford Robinson & Martin; Mary Catherine Kelly, Franklin attorney; Hunter Mobley, Howard Mobley Hayes & Gontarek; and Jeff Mobley, Howard Mobley Hayes & Gontarek. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/probate
LAW CONFERENCE FOR TENNESSEE PRACTITIONERS WHEN: Thursday & Friday, November 14 & 15 in NASHVILLE (Marriott Franklin/Cool Springs) *Earn all your CLE hours at one event (12 hours of GENERAL & 3 hours of DUAL)
Get the latest on “HOT” topics impacting your practice, including: 2013 changes to the state’s trust laws; 2013 changes to the state’s conservatorship laws’ updates in tort law, family law, and real estate law; the latest developments in medical malpractice post-Shipley; subrogation issues, including Medicare set-asides: tax developments affecting LLCs; gaining an edge at social security disability hearings; ins and outs of Rule 10B on judge recusal; obtaining extraordinary relief in chancery court; ethical issues arising in attorney advertising; upcoming changes to Rule 9 regarding attorney disciplinary proceedings; and when to accept, decline or terminate representation.
FACULTY: Judge Frank Clement, Judge Thomas (Skip) Frierson, Chancellor Ellen Hobbs Lyle,
Judge Tim Easter, attorneys Brandon Bass, Rebecca Blair, Grayson Smith Cannon, Joshua Denton, Harlan Dodson, Brian Faughnan, Sandy Garrett, Randy Kinnard, Hunter Mobley, Jeff Mobley, Bryan Moseley, and Helen Rogers. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/law-conference
TENNESSEE WORKERS’ COMP CONFERENCE WHEN: Thursday & Friday, November 21 & 22 at the Embassy Suites Nashville-South/Cool Springs in Franklin *Earn up to 13 hours of CLE hours, including 2 hours of DUAL credit
Get the latest information on the changes set to take effect on July 1, 2014 – from the Department of Labor and Workforce Development; learn about the importance of related-employment laws in light of the changes to the workers’ comp system; hear about issues arising with future medical benefits, causation, and pain management; hear from Tennessee Supreme Court Justice Connie Clark, who will be a part of a panel discussion that will include a plaintiff’s attorney, a defense attorney, and an administrative attorney from the Department of Labor and Workforce Development; and attend sessions on the benefit review process, the administrative review process, subrogation, and Medicare set asides. For more information, call (800) 274-6774 or visit: www.mleesmith.com/events/live-events/tn-comp-13
IN THIS WEEK’S TAM-Bytes Supreme Court, in suit arising out of 2002 automobile accident in which force of collision caused lap seatbelt to damage 6-year-old child’s spine, rules material evidence supported jury’s award of $43.8 million for compensatory damages, 15% of which was apportioned to car manufacturer; Supreme Court, in case of first impression, holds when grandparent or parent initiates proceeding to modify or terminate court-ordered grandparent visitation, burden of proof is upon grandparent or parent seeking modification or termination to demonstrate by preponderance of evidence both that material change in circumstances has occurred and that change in circumstances makes requested modification or termination of grandparent visitation in child’s best interests; Supreme Court holds petitioner was not entitled to seek post-conviction relief from criminal contempt findings; Supreme Court revises Rule 9 governing disciplinary enforcement with respect to attorneys effective January 1, 2014; Supreme Court broadens scope of Rule 25 governing protection of client interests by extending definition of “lawyer” to encompass all lawyers practicing in Tennessee and increasing time within which client may file claim for reimbursement of losses caused by lawyer’s dishonest conduct; Court of Appeals affirms summary judgment in favor of owners of sports bar in suit by widow on behalf of her husband who was shot and killed by patron at bar; In case in which parties lived together for six years and worked jointly on number of business ventures, but never married, Court of Appeals upholds trial court’s finding that although no implied partnership existed between parties, plaintiff established by preponderance of evidence that she has property ownership interest in all of properties acquired during relationship; In case in which grandparents sought visitation with child, Court of Appeals says that although very young age of child likely was critical factor in grandparents’ inability to present proof that termination of relationship would probably result in substantial harm to child, that neither lessens nor eliminates obligation placed upon grandparents to present such proof; and Court of Criminal Appeals rules trial court does not have power to limit number of bail bondsmen within its jurisdiction absent legislative grant of authority.
SUPREME COURT DAMAGES: In suit arising out of 2002 automobile accident in which force of collision caused lap seatbelt to damage 6-year-old child’s spine, material evidence supported jury’s award of $43.8 million – $4.3 million in economic damages and $39.5 million in non-economic damages – for compensatory damages, 15% of which was apportioned to car manufacturer; Court of Appeals erred in remitting verdict to $12.9 million; while at high end of range of reasonableness, verdict was not excessive considering evidence in light most favorable to plaintiff, assuming truth of all that supports verdict, allowing all reasonable inferences and discarding any inference to contrary, affording all due respect to life-charging injuries child suffered, and considering verdicts in similar cases. Meals v. Ford Motor Co., 8/30/13, Jackson, Lee, unanimous, 15 pages.
http://www.tncourts.gov/sites/default/files/mealsaundreyopn_0.pdf
FAMILY LAW: When grandparent or parent initiates proceeding to modify or terminate court-ordered grandparent visitation, courts should apply burden of proof and standards typically applied in parent-vs-parent visitation modification cases, thus, burden of proof is upon grandparent or parent seeking modification or termination to demonstrate by preponderance of evidence both that material change in circumstances has occurred and that change in circumstances makes requested modification or termination of grandparent visitation in child’s best interests; grandmother, as adoptive parent of child’s biological father, an d her second husband, as stepparent of child’s biological father, qualify as “grandparents” under Grandparent Visitation Statute. Lovlace v. Copley, 9/6/13, Nashville, Clark, unanimous, 41 pages.
http://www.tncourts.gov/sites/default/files/lovlacen_opn.pdf
CRIMINAL PROCEDURE: Finding of criminal contempt pursuant to TCA 29-9102 is not criminal conviction, and hence, petitioner was not entitled to seek postconviction relief from criminal contempt findings in agreed order. Baker v. State, 9/6/13, Nashville, Clark, unanimous, 12 pages.
http://www.tncourts.gov/sites/default/files/bakertropn_0.pdf
PROFESSION OF LAW: Revised Rule 9 governing disciplinary enforcement with respect to attorneys, which takes effect 1/1/14, includes requirement of order of Supreme Court for reinstatement from all attorney suspensions, provisions regarding appointment of receiver attorney for attorneys who become unable to practice law, provisions for selection of and duties of practice monitors, and assessment of costs of disciplinary proceedings to attorneys who are subject to discipline. In re Adoption of Amended Supreme Court Rule 9, 8/30/13, Nashville, 64 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_9_with_apendix_-_830-2013.pdf
PROFESSION OF LAW: Supreme Court Rules 21, 33, and 43 are amended as necessary to make those Rules consistent with revised Rule 9. In re Adoption of Amendments to Supreme Court Rules 21, 33, & 43, 8/30/13, Nashville, 4 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rules_21_33_and_43_-_830-2013_0.pdf
PROFESSION OF LAW: Amended Rule 25 governing protection of client interests extends definition of “lawyer” to encompass all lawyers practicing in Tennessee and increases time from one to three years for clients to file claims for reimbursement of losses caused by lawyer’s dishonest conduct. In re Supreme Court Rule 25, 8/30/13, Nashville, 24 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_25_-_8-30-2013.pdf
GOVERNMENT: Supreme Court Rule 26, which governs use of videotape equipment of court recordings and applies only to Sixth Circuit Court in Davidson County, is amended to reflect changes in technology since initial adoption of rule in 1993. In re Amendment to Supreme Court Rule 26, 9/3/13, Nashville, 5 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_26_-_9-3-2013.pdf
CRIMINAL PROCEDURE: Rule 13 is amended to permit Administrative Office of Courts to subject claims for compensation and reimbursement by attorneys for representing indigents to reduction for any unpaid costs assessed against attorney as result of disciplinary proceedings against attorney pursuant to Rule 9. In re Adoption of Amendment to Supreme Court Rule 13, 9/4/13, Nashville, 3 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supeme_court_rule_13_with_appendix_-_94-2013.pdf
WORKERS’ COMP PANEL WORKERS’ COMPENSATION: Evidence did not preponderate against trial court’s award of 48% permanent disability, six times impairment rating of 8%, when employee, who was 38 years old at time of 2012 trial, had work history consisting entirely of unskilled or semi-skilled jobs, while employee was high school graduate and had obtained online training since her work injury in medical coding and billing, she testified that working in this field was not feasible because such work would require her “to sit at the computer all day and look down and movements of your neck and stuff up and down,” vocational expert testified that employee had 90 to 95% loss of access to open labor market as result of her shoulder injury, physical restrictions doctors imposed, in particular limitations on reaching, effectively prevented employee from engaging in all, or nearly all, of jobs she had performed prior to injury, and consistent with those restrictions, employee reported difficulty lifting and performing
sustained activity with her arms. Dixon v. Nissan North America Inc., 9/5/13, Nashville, Cantrell, 10 pages.
http://www.tncourts.gov/sites/default/files/dixonvnissan_opn__jo.pdf
COURT OF APPEALS TORTS: In suit by widow on behalf of her husband who was shot and killed by patron at sports bar, trial court properly granted defendants, owners of bar, summary judgment when defendants established that there was nothing in outward behavior of shooter or in any knowledge of past behavior that would have triggered sort of foreseeability that arises when individual’s conduct signals possibility of criminal intent. Goeser v. Live Holdings Corp., 9/4/13, MS, Cottrell, 10 pages.
http://www.tncourts.gov/sites/default/files/goesern_opn1.pdf
FAMILY LAW: In case in which parties (Ray and LaSonya) lived together for six years and worked jointly on number of business ventures during that period, but never married, evidence did not preponderate against trial court’s finding that although no implied partnership existed between parties, LaSonya established by preponderance of evidence that she has property ownership interest in all of properties acquired during relationship which were owned by either party. Morrow v. McClain, 8/29/13, MS, Cottrell, 8 pages.
http://www.tncourts.gov/sites/default/files/morrowlopn_1.pdf
FAMILY LAW: In case in which grandparents (father and stepmother of child’s mother) filed petition to establish visitation rights with 18-month-old child – child had visited often with grandparents, but mother ended visits after falling out with her father – although grandparents and child did have significant existing relationship, grandparents failed to prove that cessation of this relationship would pose danger of substantial harm to child; mere fact that significant existing relationship exists will not suffice for showing of substantial harm – statute requires grandparents to prove not just existence of significant relationship with child but also that termination of that significant relationship would pose danger of substantial harm to child; expert testimony is not required to prove either significant existing relationship with child or that termination of that relationship is likely to result in severe emotional harm to child; although very young age of child likely was critical factor in grandparents’ inability to present proof that termination of relationship likely would result in substantial harm to child, that neither lessens nor eliminates obligation placed upon grandparents to present such proof. Huffman v. Huffman, 8/30/13, ES, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/huffmanbwopn.pdf
CIVIL PROCEDURE: In case in which trial court dismissed mother’s petition for divorce, after finding that marriage was void due to mother’s pre-existing marriage in Chile, and mother filed TRCP 60.02 motion with supporting documentation purporting to show that she was never legally married in Chile, trial court erred in refusing to set hearing and in dismissing mother’s TRCP 60.02 motion to set aside final judgment; if trial court’s dismissal of mother’s motion is construed as sua sponte grant of motion to dismiss for failure to state claim upon which relief can be granted, then trial court erred in summarily dismissing TRCP 60.02 motion without any indication that trial court considered either sufficiency or merits of mother’s motion, and if trial court’s dismissal of mother’s TRCP 60.02 motion is construed as involuntary dismissal pursuant to TRCP 41.01(1), dismissal was in error when there was no evidence that mother failed to prosecute action. Gonzalez v. Gonzalez, 9/5/13, WS, Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/gonzalezcopn.pdf
COURT OF CRIMINAL APPEALS EVIDENCE: In murder case, trial judge did not err in allowing medical examiner to use bed and rope as demonstrative aid during her testimony, which she used not in attempt to create exact duplication of defendant’s re-enactment, but instead to support her opinion that victim’s death was not caused by hanging an d could not have occurred in method described and demonstrated by defendant, and defendant was already well aware of alleged assisted suicide method that medical examiner demonstrated, as he had, himself, demonstrated at length and in great detail same procedure in videotaped re-enactment conducted at his home. State v. Hill, 8/30/13, Knoxville, Glenn, 15 pages.
http://www.tncourts.gov/sites/default/files/hillstanleyopn.pdf
CRIMINAL LAW: In case in which defendant was convicted of 10 counts of aggravated sexual battery, evidence was not sufficient to convict defendant of aggravated sexual battery in Count 6 when victim did not provide any testimony that aligned with election provided by state – bill of particulars filed by state provided that Count 6 occurred during summer of 2004 in living room of defendant’s residence, and state elaborated during closing argument that Count 6 was based upon defendant’s touching victim as she sat on couch watching Disney Channel during summer after she completed fourth grade – and although victim did testify about incident that occurred while she watched Disney Channel, she specified that this incident occurred during summer after fifth grade when she had just started wearing bra; defendant’s conviction of aggravated sexual battery in Count 6 is reversed, and charge dismissed; remaining judgments of trial court are affirmed. State v. Ward, 9/4/13, Knoxville, Witt, 15 pages.
http://www.tncourts.gov/sites/default/files/warddanielopn.pdf
CRIMINAL PROCEDURE: Court may not withhold approval of bondsman without notifying bondsman in writing of action taken and of charges resulting in action and without providing bondsman opportunity to file answer denying charges and to present proof at evidentiary hearing; trial court erred in withholding approval for appellant bail bonding company (Cumberland) to write bonds in criminal courts of Ninth Judicial District; trial court does not have power to limit number of bail bondsmen within its jurisdiction absent legislative grant of authority – all statutes giving trial court power to withhold approval to write bonds focus on bondsman’s insolvency, unprofessional conduct, violation of laws related to bail bonds, or violation of requirements regulating professional bondsmen, none of which were applicable to Cumberland. In re Cumberland Bail Bonding Co., 9/3/13, Knoxville, McMullen, 9 pages.
http://www.tncourts.gov/sites/default/files/cumberlandopn.pdf
JUDICIAL ETHICS OPINION GOVERNMENT: Code of Judicial Conduct does not prohibit judicial candidates from publicizing and self-funding their campaigns prior to 180-day period before primary election for position, but, in doing so, candidates must be mindful that they cannot solicit campaign contributions or appoint campaign committee earlier than 180 days before first applicable primary election, caucus, general, or retention election. Judicial Ethics Committee Opinion 13-01, 8/15/13, 2 pages.
http://www.tncourts.gov/sites/default/files/docs/advisory_opinion_13-01.pdf
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