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TAM-BYTES

August 21, 2017


Vol. 20, No. 34

TAM Webinars

Cybersecurity Cases and Trends: Helping Clients Comply and


Control Risks, 60-minute webinar presented by Justin Joy, with
Lewis, Thomason, King, Krieg & Waldrop in Memphis, on Wednesday,
September 20, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cyber-092017
or call (800) 727-5257.

Client Cybersecurity Update: Top 10 Things to Do in the Event of a


Data Breach, 60-minute webinar presented by Paige Boshell & Mike
Pennington, with Bradley Arant Boult Cummings in Birmingham, AL, and
Alex Purvis, with Bradley Arant Boult Cummings in Jackson, MS, on
Wednesday, September 27, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/data-breach-092717
or call (800) 727-5257.

Tax Consequences in Tennessee Divorce Cases, 60-minute webinar


presented by Caroline Beauchamp, with McCarter & Beauchamp in
Brentwood, and Cheryl Panther, with Panther Financial Services in
Nashville, on Thursday, September 28, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/divorce-tax-092817
or call (800) 727-5257.

How to Identify and Resolve Real Property Title Issues in Tennessee,


60-minute webinar presented by Ralph Al Owen Frazier, Jr., with Old
Republic National Title Insurance Company in Nashville, on Tuesday,
October 17, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/title-exams-101717
or call (800) 727-5257.
On-Site Events
Personal Injury Law Conference for Tennessee Attorneys
WHEN: THURSDAY & FRIDAY, SEPTEMBER 21 & 22
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Thomas Frierson, Court of Appeals, Eastern District; Judge Ross
Hicks, Circuit Court, 19th Judicial District (Montgomery & Robertson counties);
Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business Court; Judge
Walter Kurtz, former Davidson County Circuit judge/former Tennessee senior judge;
Laura Baker, Law Offices of John Day, Brentwood; Brandon Bass, Law Offices of
John Day, Brentwood; J. Randolph Bibb, Lewis Thomason, Nashville; Jamie Durrett,
Batson Nolan, Clarksville; James Exum, Leitner, Williams, Dooley & Napolitan,
Chattanooga; Steve Gillman, Pryor, Priest, Harber, Floyd & Coffey, Knoxville; Michael
H. Johnson, Howard, Tate, Sowell, Wilson, Leathers, & Johnson, Nashville; Mary
Ellen Morris, Kinnard, Clayton & Beveridge, Nashville; Bryan Moseley, Moseley &
Moseley, Murfreesboro; William J. Rieder, Spears, Moore, Rebman & Williams,
Chattanooga; and Melanie Stewart, Heaton & Moore, Memphis.

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
*Take $50 off until August 11 (early bird discount)*

For more information, visit www.mleesmith.com/tn-personal-injury-law or call (800) 727-5257.

Family Law Conference for Tennessee Practitioners


WHEN: THURSDAY & FRIDAY, OCTOBER 12 & 13 and
THURSDAY & FRIDAY, NOVEMBER 30 & DECEMBER 1
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL
OCTOBER FACULTY: David Anthony, Bone McAllester Norton, Nashville; Dawn
Coppock, Strawberry Plains attorney; Sandy Garrett, Chief Disciplinary Counsel, Board
of Professional Responsibility; Jason Hicks, Moore, Rader, Fitzpatrick & York,
Cookeville; C. Jay Ingrum, Phillips & Ingrum, Gallatin; Stanley A. Kweller, Jackson,
Kweller, McKinney, Hayes, Lewis & Garrett, Nashville; Sean J. Martin, Martin Heller
Potempa & Sheppard, Nashville; Chancellor Larry McMillan, chancery court, 19th
Judicial District; Marlene Eskind Moses, MTR Family Law, Nashville; Phillip R.
Newman, Puryear, Newman & Morton, Nashville; Judge Phillip Robinson, circuit court,
Davidson County; Kevin Shepherd, Maryville attorney; Greg Smith, Stites & Harbison,
Nashville; Scott Womack, Lattimore Black Morgan & Cain, Nashville; and Judge
Thomas Wright, circuit court, 3rd Judicial District

DECEMBER FACULTY: Amy J. Amundsen, Rice, Amundsen & Caperton, Memphis;


David Anthony, Bone McAllester Norton, Nashville; Judge Mike Binkley, circuit court,
21st Judicial District; Chancellor Jerri S. Bryant, chancery court, 10th Judicial District;
Judge Robert L. Childers, retired circuit court judge, Shelby County; Dawn Coppock,
Strawberry Plains attorney; Jason Hicks, Moore, Rader, Fitzpatrick & York, Cookeville;
C. Jay Ingrum, Phillips & Ingrum, Gallatin; Chancellor Larry McMillan, chancery
court, 19th Judicial District; Marlene Eskind Moses, MTR Family Law, Nashville;
Phillip R. Newman, Puryear, Newman & Morton, Nashville; Judge Phillip Robinson,
circuit court, Davidson County; Kevin Shepherd, Maryville attorney; Eileen Burkhalter
Smith, Disciplinary Counsel, Board of Professional Responsibility; and Greg Smith,
Stites & Harbison, Nashville

HIGHLIGHTS: Protecting a clients separate assets; dividing/valuing marital


property; orders of protection/domestic violence issues; relative/stepparent/adult
adoptions; technology for the family law practitioner; modifying permanent
parenting plans; practical tips from judges across the state; hot topics in child
custody/property division; tax issues in divorce; civil and criminal contempt in
family matters; use of trusts in family law practice; discovery abuses and
remedies; dealing with children in a divorce case; tips for effective direct/cross-
examination; case law/legislative update; ethics and professionalism in family
law practice; and attorneys ethical use of social media

PRICING: $497 (full program) ($427 for any additional attendees from same firm);
$347 (one day only); and $247 (materials only)
$50 early bird discount until September 1 (October conference)
$50 early bird discount until October 20 (December conference)

For more information, visit www.mleesmith.com/family-law-conference or call (800) 727-5257.


10th annual
Tennessee Real Estate Law Conference
WHEN: FRIDAY, OCTOBER 20
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL

SPEAKERS: Kim A. Brown, Sherrard Roe Voigt & Harbison, PLC, Nashville; Jason
Holleman, West Nashville Law Group, Nashville; Anita I. Lotz, Farris Bobango PLC,
Memphis; Michael Patton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Memphis; Elizabeth C. Sauer, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC,
Nashville; Brooks R. Smith, Bradley Arant Boult Cummings LLP, Nashville; Wesley D.
Turner, Gullett Sanford Robinson & Martin PLLC, Nashville; Heather Howell Wright,
Bradley Arant Boult Cummings LLP, Nashville

HIGHLIGHTS: Kim Brown touches on many of the aspects of a commercial real estate
transaction by looking at resources and samples of documents that help to address the
various aspects of the transaction; Brooks Smith looks at inspection and diligence issues,
representations and warranties, covenants, and other details to making sure the sale goes
smoothly; Michael Patton reviews what events are covered by title insurance, how to
make a claim, and why title insurance companies deny claims and also discusses
litigation, arbitration, and the bad faith penalty; Heather Wright gives an overview of
insurance provisions in commercial leases, including coverage of tenant-installed fixtures
and improvements, coverage for damages and destruction of property, and waivers of
subrogation; Elizabeth Sauer explains special considerations for commercial and
investment transactions, including entity formation, CAP rate, zoning concerns, and 1031
exchanges; Anita Lotz details the closing process for commercial real estate
transactionsopening the closing, reviewing the sale agreement, reviewing the closing
package, and preparing and approving the documents and gives examples of closing
checklists; Jason Holleman reviews ethical concerns in boundary law, including attorney
fees, confidentiality, communication with unrepresented parties, and conflicts of interest;
and Wes Turner updates attorneys on the latest appellate court cases and legislation in
the real estate law area.

PRICING: $377 (full program) ($297 for any additional attendees from same firm);
and $197 (materials only)
*Take $50 off until September 8 (early bird discount)*

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.


11th annual
Tennessee Workers Comp Conference
WHEN: WEDNESDAY, THURSDAY & FRIDAY, NOVEMBER 8-10
WHERE: Nashville Hilton Airport
CLE: Earn 15 hours of CLE 14 hours of GENERAL and 1 hour of DUAL

SPEAKERS: WORKERS COMP JUDGES: Judge Marshall Davidson; Judge


Pamela Johnson; and Chief Judge Ken Switzer. TENNESSEE BUREAU OF
WORKERS COMPENSATION: Troy Haley. WORKERS COMP/EMPLOYMENT
LAW ATTORNEYS: Mary Dee Allen, Wimberly Lawson Wright Daves & Jones PLLC;
Fred Baker, Wimberly Lawson Wright Daves & Jones PLLC; Leslie Bishop, Lewis,
Thomason, King, Krieg, & Waldrop, P.C.; Kitty Boyte, Constangy, Brooks, Smith &
Prophete, LLP; Catherine Dugan, Peterson White; Frank Gallina, Parker, Lawrence,
Cantrell & Smith; Howard M. Kastrinsky, King & Ballow; Rockforde (Rocky) D. King,
Egerton, McAfee, Armistead & Davis, P.C.; Charles (Chuck) J. Mataya, Bradley Arant
Boult Cummings LLP; Marshall McClarnon, Ponce Law; Lynn C. Peterson, Lewis,
Thomason, King, Krieg & Waldrop, P.C.; Mallory Schneider Ricci, Constangy, Brooks,
Smith & Prophete, LLP; Steven L. Shields, Jackson, Shields, Yeiser & Holt; Steven N.
Snyder, Jr., McAngus Goudelock & Courie; and Kenneth D. Veit, Leitner, Williams,
Dooley & Napolitan PLLC. OTHERS: Wendy Fisher, Safety Compliance Manager with
Tennessee OSHA; Dr. Jeffrey Hazlewood, Board Certified in Physical Medicine and
Rehabilitation, subspecialty Board Certification in Pain Medicine; and Dawn Trojan-
Randle, Claim Specialist at Brentwood Services.

HIGHLIGHTS: Insight from judges on the Court of Workers Compensation Claims


and the Workers Compensation Appeals Board; a panel discussion with attorneys and
physicians on the medical and legal determinations of causation in a workers comp case;
challenges faced by employers when dealing with social media in the workplace; tips on
how to avoid the imposition of penalties; a doctors perspective on the opioid epidemic;
interplay between workers comp, the ADA, and the FMLA; termination and retaliation
issues; attorney track also includes a session on whats new with Medicare set-asides,
ethical issues arising during mediation, medical issues in a workers comp claim, the
settlement process; hot topics from the plaintiffs perspective, and a panel discussion
featuring defense and plaintiffs attorneys; and review of the latest cases from the
Workers Compensation Appeals Panels, Workers Compensation Appeals Board, and
Court of Workers Compensation Claims.

PRICING: $547 (full program) ($477 for any additional attendees from same firm
or subscribers to Tennessee Workers Comp Reporter or the Tennessee Employment
Law Letter); $347 (Thursday only); and $247 (materials only)
*Take $50 off of full program until October 13 (early bird discount)*

For more information, visit www.mleesmith.com/trel or call (800) 727-5257.


Law Conference for Tennessee Practitioners
WHEN: THURSDAY & FRIDAY, NOVEMBER 16 & 17
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge John W. McClarty, Court of Appeals, Eastern Section; Chancellor


Ellen Hobbs Lyle, Chancery Court/Business Court, Davidson County; Chancellor
Russell T. Perkins, Chancery Court, Davidson County; Judge Thomas S. Wright,
Circuit Court, Third Judicial District (Greene, Hamblen, Hancock, and Hawkins
counties); Brandon Bass, Law Offices of John Day, PC; Griffin S. Dunham, Dunham
Hildebrand PLLC; Christopher S. Dunn, Waller Lansden Dortch & Davis LLP; Donald
J. Farinato, Hodges, Doughty & Carson PLLC; Sandy Garrett, Chief Disciplinary
Counsel, Board of Professional Responsibility; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson PLLC; Brenton H. Lankford, Stites & Harbison
PLLC; Rachel Schaffer Lawson, Schaffer Law Firm PLLC; Mark E. McGrady, Farrar
& Bates LLP; Melanie M. Stewart, Heaton and Moore PC; and Joseph L. Watson,
Waller Lansden Dortch & Davis LLP

HIGHLIGHTS: Ramifications of the Dedmon decision; researching automobile


insurance coverage; latest trends in suits against motor vehicle manufacturers;
admissibility of expert testimony is the expert competent and will the testimony
substantially assist the jury?; subrogation and lien issues Medicaid/Medicare liens,
hospital liens, and workers comp liens; effective motion practice for todays civil
practitioner; assessing the viability of a slip, trip, and fall case; effective use of social
media in litigation; medical discovery and special issues in uninsured/underinsured
motorist cases; advanced deposition strategies; review of recent personal injury cases;
accepting, declining, and terminating legal representation; and attorney ethics conflicts
of interest, attorney fees, and social media.

PRICING: $497 (full program) ($427 for any additional attendees from same
firm/$397 for full program for lawyers 65 and over and lawyers in practice for two
years or less); $447 (full program less ethics); $297 (One day only); $147 (ethics
only); and $247 (materials only)
*Take $50 off until October 13 (early bird discount)*

For more information, visit www.mleesmith.com/tlc or call (800) 727-5257.


Probate & Estate Planning Conference for Tennessee Attorneys
WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)
*Take $50 off until November 3 (early bird discount)*

For more information, visit www.mleesmith.com/tpep or call (800) 727-5257.

IN THIS WEEKS TAM-Bytes

Supreme Court rules that trial judges may set minimum term of
confinement before felony split confinement prisoners become
eligible to earn work-based sentence reduction credits;
In issue of first impression, Workers Comp Appeals Board holds
Notice of Withdrawal of Petition for Benefit Determination issued
by mediator does not serve as voluntary dismissal of claim for
purposes of statute of limitation;
Court of Appeals reversed summary judgment in favor of defendant
restaurant when plaintiff fell after picking up box of food and bag of
ice when defendant had superior knowledge with regard to how long
bag of ice had been sitting out at room temperature before plaintiff
arrived to pick up her order;
Court of Appeals affirms grant of summary judgment in favor of
defendant hospital when plaintiff, while exiting hospital, was hit by
automatic door, fell, and broke her femur in absence of showing that
defendant could have discovered, by reasonable inspection, alleged
dangerous or defective condition that caused plaintiffs injuries;
Court of Appeals holds that when three witnesses, all of whom
were long-time employees of decedent, testified that decedent was
of sound mind and disposing memory when he executed
purported will, TCA 32-1-104(b) operated to integrate witnesses
signatures into will even though affidavit was silent as to
decedents capacity to execute will;
Court of Criminal Appeals rules, in murder case, that there was
sufficient circumstantial evidence to authenticate defendants Twitter
records and witnesses testimony regarding defendants Facebook and
Twitter accounts; and
Court of Criminal Appeals upholds suppression of evidence seized
from home when, although one of defendants was on probation at
time of search and was subject to warrantless searches as condition of
her probation, search was invalid because officers did not have
reasonable suspicion to justify search.

SUPREME COURT

CRIMINAL SENTENCING: Sentencing Act implicitly authorizes


Tennessee trial judges to include in judgment of felony split confinement
sentence percentage of actual confinement defendant must serve before
becoming eligible to participate in work program and earn work credits;
sheriffs in Tennessee have no duty to challenge sentence as improper or
potentially improper. Ray v. Madison County, 8/16/17, Nashville, Clark,
unanimous, 21 pages.
http://www.tncourts.gov/sites/default/files/rayjason.opn_.pdf
WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Given that no mechanism exists in


workers compensation statutes or regulations for withdrawing Petition for
Benefit Determination, trial court correctly concluded that withdrawal is
functional equivalent of notice of nonsuit and that, unless certain conditions
are met, nonsuit does not become effective; because those conditions were
not met, trial court found that employees attempt to withdraw, or nonsuit,
his claim was ineffective and thus claim remained active claim despite its
purported withdrawal; Notice of Withdrawal of Petition for Benefit
Determination issued by mediator does not serve as voluntary dismissal of
claim for purposes of statute of limitation. Taylor v. American Tire
Distributors, 8/15/17, Davidson, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1883&context=utk_workerscomp

COURT OF APPEALS

TORTS: In healthcare liability action by prison inmate against two


physicians and medical center, inmate did not demonstrate extraordinary
cause to justify waiver or excuse of his obligation to comply with pre-suit
notice statute when inmate did not mail notice to physicians at both address
listed for them on Tennessee Department of Health web site and their
current business address before mailing it to them at location where they last
provided medical service to him, and notices inmate mailed to physicians
were returned to him as undeliverable, and there is no evidence that either
physician actually received pre-suit notice at all; trial court did not err in
denying inmates request to waive statutory requirement that he file
certificate of good faith with his complaint on basis that he was incarcerated
and was unable to find physician who would be willing to review his
medical records and verify that he was filing suit in good faith. Kinsey v.
Schwarz, 8/18/17, Nashville, Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/kinsey.marvin.opn_.pdf

TORTS: When plaintiff entered defendant restaurant through carry-out


entrance, told manager that she was there to pick up her order, and handed
manager credit card, manager took credit card and told her that her food was
over on the ledge, food order included couple of gallons of tea, and two,
maybe more, bags of ice, and plaintiff picked up box and bag of ice to head
for her car and fell, trial court erred in granting defendant summary judgment
in plaintiffs slip and fall suit; trial court defined dangerous or injury-causing
condition too narrowly when dangerous or injury-causing condition was not
just water that fell on floor after plaintiff picked up bag of ice, but dangerous
or injury-causing condition included partially melted bag of ice with
condensation on it waiting to be picked up by plaintiff; defendant had superior
knowledge with regard to how long bag of ice had been sitting out at room
temperature before plaintiff arrived to pick up her order; foreseeable
probability and gravity of harm outweighed burden on defendant to have
taken steps that would have prevented harm, so defendant owed duty to
plaintiff. Rader v. Ruby Tuesday Inc., 8/18/17, Knoxville, Swiney, 11 pages.
http://www.tncourts.gov/sites/default/files/holly_rader_et_al._v._ruby_tuesday_inc..pdf

TORTS: When plaintiff filled prescription at pharmacy of Jackson-Madison


County General Hospital District (defendant), and as she was exiting
hospital, she approached first set of automatic doors at angle parallel to face
of door, then turned sharply left, and as she crossed threshold of door, her
shoulder hit automatic sliding door panel, which was closing, and she fell
and fractured her femur, and plaintiff filed suit under Governmental Tort
Liability Act, trial court properly granted summary judgment to defendant;
in absence of facts showing that defendant could have discovered, by
reasonable inspection, alleged dangerous or defective condition that caused
plaintiffs injuries, there is no material evidence from which trier of fact
could conclude that defendants immunity should be removed. Templeton v.
Jackson-Madison County General Hospital District, 8/15/17, Jackson,
Armstrong, 12 pages.
http://www.tncourts.gov/sites/default/files/templetonsueannopn.pdf

TORTS: When plaintiff was arrested on 6/1/15 for driving on revoked or


suspended license and making 911 phone call in non-emergency situation,
plaintiff filed complaint on 8/11/16, alleging that as result of his arrest,
officers caused him to suffer damages, claims of malicious prosecution,
intentional infliction of emotional distress, and civil rights violations were
properly dismissed pursuant to immunity afforded to defendants by
Governmental Tort Liability Act; trial court properly determined that
plaintiffs claims accrued on 6/1/15, more than one year prior to filing of
complaint, and claims of intentional infliction of emotional distress, false
imprisonment, malicious harassment, and civil rights violations are barred by
statute of limitation; plaintiff has alleged, at most, occasional interference with
personal property, resulting in no loss of market value, and this is insufficient
to establish inverse condemnation claim; trial court properly determined that
plaintiff failed to allege essential elements of his claim of conversion. Olivier
v. City of Clarksville, 8/17/17, Nashville, Frierson, 14 pages.
http://www.tncourts.gov/sites/default/files/olivier.mardoche.opn__0.pdf
EMPLOYMENT: When plaintiff, licensed practical nurse at defendant,
organization paid by state to provide medical care and services to serve
persons with developmental disabilities for duration of their lives, reported
that nurse at defendant was documenting that she was providing hospice
patient (H.G.) with proper amount of food but she was actually giving her
more, plaintiff began at end of 2009 and continued up chain of command until
9/10 to report overfeeding to number of staff at defendant, including her
supervisor, her supervisors supervisor, incident management, and defendants
compliance officer, plaintiff filed suit alleging that defendant fired her in
retaliation for filing report of alleged abuse or neglect of H.G. to Tennessee
Department of Developmental Disabilities (DIDD), and jury awarded plaintiff
$225,000 in compensatory damages and $200,000 in punitive damages,
evidence, as whole, preponderated in favor of finding that plaintiff was
whistleblower pursuant to common law definition despite defendants
contention that there was no proof of overfeeding and that plaintiff did not act
in good faith when she filed false report; trial court did not err in denying
defendants motion for judgment NOV as reasonable minds could differ as to
whether plaintiff was subject of retaliatory discharge; material evidence
supported jurys finding by clear and convincing evidence that defendant
acted intentionally and that punitive damages were proper. Upshaw v. Sunrise
Community of Tennessee Inc., 8/16/17, Knoxville, McClarty, 17 pages.
http://www.tncourts.gov/sites/default/files/latisia_upshaw_v._sunrise_community_of_tennessee_inc..pdf

ESTATES & TRUSTS: When contestant argued that purported will was
not signed by witnesses because signatures were on otherwise blank piece of
paper attached to document titled affidavit, trial court erred in denying
admission of will to probate; TCA 32-1-104(b) prohibits affidavits, which
are integrated into will, from being used as self-proving affidavits; when
three witnesses, all of whom were long-time employees of decedent,
testified that decedent was of sound mind and disposing memory when he
executed purported will, statute operates to integrate witnesses signatures
into will even though affidavit is silent as to decedents capacity to execute
will; even if witness could not see decedent actually place his signature on
will, at time she signed as witness, witness recognized decedents signature
and knew that she was witnessing decedents will; argument that decedent
did not sign will in presence of witness because she could not see him place
his signature is not dispositive when decedent acknowledged his signature
on his will when he asked witness to step across room to witness it. In re
Estate of Fant, 8/15/17, Jackson, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/estateofcharlesfantopn.pdf
GOVERNMENT: Evidence preponderated against trial courts decision
upholding termination of tenured teachers (Elmis) employment for
insubordination when Elmis tardiness on one occasion was not act of
insubordination, there was no proof that Elmi failed to post grades in
accordance with school policy during 2013-14 school year, and there was no
proof that Elmi failed to follow principals exact instructions regarding
unruly student; evidence was not sufficient to uphold Elmis termination on
basis of inefficiency when, although Elmi had two consecutive years of
below average classroom observation scores, which was based in large part
on principals evaluations of Elmi, Elmi improved in four out of five
categories from 2012-13 school year to 2013-14 school, and her only
deficiency below-average classroom observation scores was due, in part,
to principal assigning Elmi to traffic duty for entire school year and to
administration failing to perform tasks required of it under Elmis plan of
assistance, implemented by principal to assist Elmi in improving her
performance in classroom. Elmi v. Cheatham County Board of Education,
8/18/17, Nashville, Clement, 21 pages.
http://www.tncourts.gov/sites/default/files/elmicarlisa_-_opn_corrected.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In murder case, there was sufficient circumstantial evidence


to authenticate defendants Twitter records and witnesses testimony
regarding defendants Facebook and Twitter accounts when multiple
witnesses testified that evidence obtained from social media was clearly tied
to defendant, defendant had opportunity to cross-examine each of these
witnesses, and defense counsel argued that due to nature of electronics and
social media, someone other than defendant could have made these social
media posts; evidence from social media and emails may be sufficiently
authenticated if prosecution offers corroborating circumstantial evidence.
State v. Linzy, 8/18/17, Knoxville, Thomas, 21 pages.
http://www.tncourts.gov/sites/default/files/jabriel_linzy_opinion.pdf

CRIMINAL PROCEDURE: In theft case, omission of co-defendants


(Stephens) name when prosecutor read indictment to jury did not constitute
amendment of indictment jury was told on more than one occasion that
Stephens was charged as co-defendant in case and that charges against
Stephens had been dismissed. State v. Sexton, 8/17/17, Knoxville, Woodall,
Ogle concurs in results only, 18 pages.
http://www.tncourts.gov/sites/default/files/michael_dean_sexton_opinion.pdf
CRIMINAL LAW: In drug case, trial judge properly granted defendants
(Angela and David Hamms) motion to suppress evidence seized as result
of warrantless search of their home when, although Angela was on
probation at time of search and was subject to warrantless searches as
condition of her probation, search was invalid because police officers did
not have reasonable suspicion to justify search information possessed by
officers at time of search was insufficient to establish reasonable suspicion
that Angela was engaged in illegal drug-related activity at home; General
Assembly has not expressly authorized warrantless searches as condition
of probation, and there is not uniform warrantless search provision to
which every probationer in Tennessee is subject language of warrantless
search provision differs according to office, division, or entity supervising
probationer. State v. Hamm, 8/11/17, Jackson, McMullen, concurrence by
Williams, dissent by Glenn, 27 pages.
http://www.tncourts.gov/sites/default/files/hamm_angela__david_opn.pdf

CRIMINAL LAW: Evidence was not sufficient to convict defendant of


failure to appear after jury trial when criminal court clerk was unable to
testify at trial whether defendant had been explicitly told to appear in court
on July 29, state did not produce any other witnesses who could testify that
defendant was told to appear in court on July 29, and clerk was unable to
testify as to typical procedure for informing defendants of their court dates
in general sessions court without such information, Case Setting was
insufficient to show that defendant knew about his July 29 court date. State
v. Smith, 8/18/17, Knoxville, Holloway, 7 pages.
http://www.tncourts.gov/sites/default/files/william_harold_smith_opinion.pdf

CRIMINAL PROCEDURE: In theft case, portion of prosecutors opening


statement in which prosecutor claimed that defendants conduct showed
intent to steal should have been reserved for closing argument, but given
fact that defendant failed to object to improper argument, no plain error
exists testimony showed that defendant fled from victims property on
ATV, that defendant fled from victim and various law enforcement officers,
and that defendant only stopped ATV after it was struck by another motorist
in truck; prosecutor made improper comment on defendants propensity to
commit charged offense by referencing defendants previous convictions for
aggravated robbery and robbery, and error was compounded by lack of
proper jury instruction directing jurors about permitted use of defendants
previous conviction, but error was harmless when there was overwhelming
evidence of defendants guilt; state is cautioned that similar argument in
another case in which evidence is not overwhelming might result in reversal
of conviction and that compliance with Rules of Professional Responsibility
is expected. State v. Buckner, 8/14/17, Nashville, Montgomery, 29 pages.
http://www.tncourts.gov/sites/default/files/buckner.jonathan.opn_.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee sustained injuries to


multiple fingers while cleaning sheeting machine while machine was in
operation and unguarded, employer did not establish that, at hearing on
merits, it will prevail in showing that employee either willfully violated
safety rules or refused to use safety guard when employer did not meet its
burden of proving it communicated to employee that back of sheeting
machine was safety guard. Resto v. Chattanooga Bakery Inc., 6/6/17,
Chattanooga, Wyatt, 11 pages.
http://trace.tennessee.edu/utk_workerscomp/821

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