TAM-BYTES

February 9, 2015
Vol. 18, No. 6
2015 TAM CLE CALENDAR

Webinars
The Tennessee Attorneys Trust Account Handbook: Ethical
Considerations and Key Provisions, 60-minute webinar presented by Sandy
Garrett, chief disciplinary counsel with the Board of Professional
Responsibility, on Tuesday, February 24, at 10 a.m. (Central), 11 a.m.
(Eastern).
*Earn 1 hour of DUAL credit.
Where Family Law and International Issues Collide: Relocation and
Child Abduction Issues, 60-minute webinar presented by Rebecca
McKelvey Castaneda, with Stites & Harbison in Nashville, on Wednesday,
February 25, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Telephone Consumer Protection Act: One Year After FCC Changes, 60minute webinar presented by Stan Herring, with Watts & Herring in
Birmingham, on Tuesday, March 17, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.
Fair Debt Collection Practices Act: Understanding Debtor Protections
and Creditor Boundaries, 60-minute webinar presented by Hugh Ward,
with Young Williams Law Firm, PC, in Knoxville, on Thursday, March 26, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.

On-Site Events

Medical Malpractice Conference for Tennessee Attorneys

*Now in its 8th year!*
WHEN: Friday, May 8
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: Davidson County Circuit Judge Tom Brothers; Brandon Bass,

Law Offices of John Day; Daniel Clayton, Kinnard, Clayton & Beveridge; C. J.
Gideon, Gideon, Cooper & Essary; Ben Harrison, Cornelius & Collins; Marty
Phillips, Rainey, Kizer, Reviere & Bell; and Tom Pinckney, Of Counsel, Howell
& Fisher
HIGHLIGHTS: Recent developments in pre-suit notice and certificate of good
faith requirements; practical considerations for handling a health care liability
claim on behalf of an injured patient; techniques for deposing an expert;
physician credentialing and other hospital liability issues; trial tips and tactics
from the defense perspective; deposition strategies; the use of technology in a
health care liability case; review of recent health care liability appellate court
cases; a panel discussion of hot topics in health care liability actions; and
ethical issues in handling medical records, including HIPAA compliance.

Tennessee Business Law Conference

*New for 2015!*
WHEN: Friday, May 15
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: Alexander J. Davie, Riggs Davie, Nashville; Keith C. Dennen,
Dickinson Wright, Nashville; Cole Dowsley, Thompson Burton, Franklin; J.
Nelson Irvine, Chambliss, Bahner & Stophel, Chattanooga; Mark Ison, Sherrard
& Roe, Nashville; Thomas K. Potter, III, Burr & Forman, Nashville; Andrew J.
Pulliam, Wyatt, Tarrant & Combs, Nashville; and Richard Spore, Bass, Berry
& Sims, Memphis
HIGHLIGHTS: Piercing the corporate veil, including factors to consider,
parent/subsidiary liability, reverse piercing, and effect of Hobby Lobby;
liability and fiduciary duties of corporate officers and directors to the
corporation and the shareholders; a step-by-step guide to a business divorce
from fact-finding to the end game; recent changes to the Tennessee Nonprofit
Corporation Act optional changes to governing documents; key
considerations in selecting a business entity for example, using series LLCs
and new hybrid alternatives; drafting LLC operating agreements key
provisions to include; forming a professional service business including
management services and friendly PC arrangements involving

nonprofessionals; and ethics for attorneys in business disputes including

understanding the scope of your representation.
For more information or to register for any of our CLE events, call (800) 727-5257 or visit
us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes

Court of Appeals finds that trial court properly awarded reasonable
amount of punitive damages based on all applicable considerations in suit
against timeshare developer, but orders remittitur of that award to
$500,000 in order to comply with statutory caps in TCA 29-39-104(a)(5);
Court of Appeals, in suit by insurance company to reduce its uninsured
motorist liability by amounts paid by insureds automobile insurance
carrier, denies offset in light of legislative intent that offsets should be
limited to monies received from legally responsible parties or entities and
limiting language used in insurance policy;
Court of Appeals says registration provision of Tennessee Uniform Child
Custody Jurisdiction and Enforcement Act does not apply to foreign
grandparent visitation orders;
Court of Appeals holds wife was prevailing party in case in which wife
filed petition for civil contempt to compel husband to comply with
provision of parties marital dissolution agreement (MDA) and upholds
award of attorney fees to wife when, even though there was no hearing or
ruling on merits of wifes enforcement claim, but for wifes petition,
husband would not have fulfilled his obligation under MDA to remove
wife from all liability on mortgage debt;
In case of first impression, Court of Appeals holds continuous
garnishment statute, TCA 26-2-214, applies only to employers and
reverses judgment against garnishor, realty company, that paid
commissions to garnishors debtor, independent contractor, and paid no
monies pursuant to garnishment; and
Court of Criminal Appeals holds that in both probable cause for arrest
(or citation) cases and reasonable suspicion for investigatory stop cases
involving Class C misdemeanor traffic offenses, it is not required that
what officer observes be enough evidence to support beyond reasonable
doubt that driver has committed Class C misdemeanor offense, and all
drivers who briefly cross fog line on highways in Tennessee may be
pulled over based on probable cause that he or she has committed Class
C misdemeanor offense.

COURT OF APPEALS
TORTS: When Troy Frame punched plaintiff, who was attending auction,
plaintiff filed complaint against Jewell and Deborah Frame, who ran auction,
and Troy Frame, and plaintiff alleged that Troy Frame had committed assault
and battery against him, that Jewell and Deborah Frame were vicariously liable
for Troy Frames actions as his employers, and that Jewell and Deborah Frame
had negligently and recklessly hired Troy Frame, trial court erred in granting
plaintiff summary judgment to extent that Jewell and Deborah Frame were found
vicariously liable because plaintiffs factual assertion that Troy Frame was
employee of business was not properly supported by record; by failing to
respond to summary judgment motion or appear at hearing on motion, by failing
to appear at separate hearing on damages, and by not making their own jury
demand, Jewell and Deborah Frame impliedly consented to waive their right to
jury on issue of damages. Crowley v. Frame, 1/29/15, MS, McBrayer, 8 pages.
http://www.tba.org/sites/default/files/crowleyt_013015.pdf

DAMAGES: When plaintiffs filed suit against defendant timeshare developer

seeking to rescind contract for purchase of timeshare interest and alleging that
defendant was guilty of fraud and misrepresentation, as well as violations of
Tennessee Time-Share Act and Tennessee Consumer Protection Act (TCPA),
and trial court ruled in favor of plaintiffs and allowed them to rescind contract,
ordering payment of their purchase money and finding that defendant had
violated respective statutory provisions and was guilty of fraud and
misrepresentation, trial court did not err in awarding punitive damages; punitive
damages award of $600,000 was reasonable, based on applicable factors, and
supported by ratio within constitutionally acceptable range; when punitive
damage award was set by trial court after proper consideration of all factors,
court should have then applied statutory cap and reduced punitive damage
award to $500,000 in accordance with TCA 29-39-104(a)(5). Overton v.
Westgate Resorts Ltd. L.P., 1/30/15, ES, Frierson, 20 pages.
http://www.tncourts.gov/sites/default/files/overton.pdf

INSURANCE: In case in which insurance company (Allstate) sought reduction

of its uninsured motorist liability by amounts paid by insureds automobile
insurance carrier (State Farm), trial court correctly denied offset; to allow such
offset would not only contradict contractual language that policy limits will be
reduced by payments made by anyone else responsible, but such
interpretation would also violate legislative intent to limit offsets to those
monies paid or payable by legally responsible parties; while specific reduction
of damages language in policy broadly states that damages payable will be

reduced by any similar medical payments coverage under this or any other
policy, this language must be read in pari materia with entire agreement, and
hence, broad exception for medical payments must be read in light of language
set out in same section of policy that policy limits will be reduced by payments
paid or payable by anyone else responsible State Farm is not legally
responsible insurer, and Allstate is legally responsible uninsured motorist
carrier. Powell v. Clark, 2/3/15, WS at Nashville, Armstrong, 12 pages.
http://www.tncourts.gov/sites/default/files/powell_diana._opn.pdf

COMMERCIAL LAW: When, during prior suit, Merit Construction, Inc.

(Merit) in exchange for covenant not to execute against Merits assets
assigned to JAG Properties, LLC (JAG), entity that obtained judgment against
Merit, Merits insurance coverage claims, and JAG thereafter assigned those
rights to plaintiffs to allow them to step into shoes of Merit and bring suit
against insurance broker, trial court erred in entering judgment on pleadings in
favor of insurance broker on ground that plaintiffs would not be entitled to
recover any compensatory damages at trial; judgment creditors covenant not to
execute on judgment debtors assets does not extinguish underlying liability of
judgment debtor for compensatory damages; judgment debtor is an injured
party that can pursue negligence claim against its insurance provider for
procuring liability policy that allowed gap in coverage; JAGs covenant not to
execute on judgment against Merit does not extinguish underlying liability of
Merit under judgment; Merit is injured party because of outstanding liability
against which it sought to insure itself through TIS Insurance Services, Inc.
(TIS); if Merit can pursue claim against TIS for unpaid portion of JAGs
judgment against Merit, that right can be assigned to JAG, and JAG, likewise,
can assign right to plaintiffs. Littleton v. TIS Insurance Services Inc., 2/3/15,
ES, McClarty, 6 pages.
http://www.tncourts.gov/sites/default/files/littletonopn.pdf

COMMERCIAL LAW: In suit arising out of construction project at

wastewater treatment facility in which City of South Pittsburg (City) sued
engineering firm and construction firm for breach of contract, negligence, and
professional negligence, and insurance company which issued performance
bond covering project was added as party in 5/11, trial court did not err in
denying insurance companys motion for summary judgment, which contended
that City had not instituted proceeding to recover under bond within two-year
period specified in bond; two-year limitation ran from formal declaration of
default by City, so, provided none of other events specified in bond occurred
earlier, City had until 7/22/11 to institute suit against insurer; there was genuine
issue of fact as to when contractor ceased working on project, and issue is
material in determining whether two-year period to institute proceeding under

bond began in 2/09. Travelers Casualty & Surety Co. of America v. City of
South Pittsburg, 1/30/15, MS, Dinkins, 11 pages.
http://www.tncourts.gov/sites/default/files/travelers_v._south_pittsburg.opn_.pdf

PROPERTY: When appellants had their 2009 bids accepted at judicial sale but
failed to carry out their purchases and close on properties, and properties were
resold in 2013, trial court properly assessed damages against appellants for
difference between their 2009 bids and 2013 bid at resale, plus costs incurred
during 2013 resale, with credit for deposits tendered by appellants in 2009.
Hobbs v. Nottingham, 1/30/15, ES, McClarty, 18 pages.
http://www.tncourts.gov/sites/default/files/hobbsopn.pdf

FAMILY LAW: In case in which father filed petition to modify permanent

parenting plan to designate him primary residential parent of parties child,
evidence did not preponderate against trial courts determination that although
there had been material change of circumstances, it was not in childs best
interest to change his primary residential parent given fact that child was
thriving in mothers care and, although mothers actions in slapping child on
one occasion are not to be condoned, trial court considered effect of this
incident on physical and emotional safety of child and ultimately characterized
it as unwise disciplinary choice and isolated incident, not child abuse. Zahn
v. Logan, 2/2/15, MS, Bennett, 21 pages.
http://www.tncourts.gov/sites/default/files/zahnf.revisedopn.pdf

FAMILY LAW: In case in which mother of four children was killed while on
duty as police officer, childrens maternal grandmother and father of three of
children sought custody of all four children, and trial court ultimately awarded
custody to childrens maternal grandfather, although grandfather was not party
to proceedings and did not request guardianship of four children, trial court
erred in first awarding grandfather guardianship of fathers three biological
children without first determining that there would be substantial risk of harm
to children should father be appointed guardian and second, in awarding
grandfather guardianship of mothers fourth child without conducting thorough
best interest analysis; trial court erred in concluding that appointing guardian
pursuant to TCA 34-2-103 requires nothing more than best interest analysis
when choice of guardian is between biological parent and non-parent; when
parent is not appointed as guardian of his or her children, that parents
fundamental constitutional rights to care, custody, and control of his or her
children are implicated; in proceeding to appoint guardian for child, trial court
should employ analysis similar to that involving custody of child. In re
Guardianship of Taylour L., 1/29/15, WS, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/inreguardianshipoftaylouropn.pdf

FAMILY LAW: In case in which parties filed action for legal separation in
Tennessee and entered into agreed temporary parenting plan providing for
custody of their children, and childrens maternal grandmother intervened,
seeking registration and enforcement under Tennessee Uniform Child Custody
Jurisdiction and Enforcement Act (TUCCJEA) of Kentucky grandparent
visitation order, trial court erred in granting grandmothers request for
registration and enforcement of visitation order; legislature intended to require
grandparents seeking visitation rights in Tennessee to utilize Grandparent
Visitation Statute rather than TUCCJEA, and as such, grandmother was
required to seek visitation under Tennessee Grandparent Visitation Statute;
TUCCJEA registration provision does not apply to foreign grandparent
visitation orders. Moorcroft v. Stuart, 1/30/15, MS, McBrayer, 18 pages.
http://www.tncourts.gov/sites/default/files/moorcroftp.opn_.pdf

FAMILY LAW: In post-divorce proceeding in which wife filed petition for

civil contempt to compel husband to comply with parties marital dissolution
agreement (MDA) by either refinancing, paying in full, or selling real property
mortgaged in her name in order to remove her from any liability on
indebtedness, and husband, on eve of evidentiary hearing on wifes contempt
petition, paid off indebtedness, trial court properly determined that wife was
prevailing party and awarded wife $4,000 in attorney fees pursuant to
enforcement provision of MDA; wife was prevailing party because it was
reasonably necessary for her to institute legal proceedings to enforce husbands
compliance with MDA, and even though there was no hearing or ruling on
merits of her enforcement claim, but for wifes petition, husband would not
have fulfilled his obligation under MDA to remove wife from all liability on
mortgage debt. Williams v. Williams, 1/30/15, MS, Clement, dissent by
McBrayer, 24 pages.
http://www.tncourts.gov/sites/default/files/williamsl_opn.pdf
http://www.tncourts.gov/sites/default/files/williamsl.dissent.pdf

FAMILY LAW: Even if trial court finds that one party engaged in vexatious
litigation tactics, that party is not barred from being able to collect some of his or
her reasonable attorney fees. Coleman v. Coleman, 2/4/15, WS, Stafford, 23 pages.
http://www.tncourts.gov/sites/default/files/colemanjeopn_0.pdf

CIVIL PROCEDURE: When appellee served writ of garnishment on

appellant realty company for wages of appellees debtor, during six-month
period after garnishment was served, appellant paid debtor commissions but
paid no monies pursuant to garnishment filed by appellee, and appellee filed
motion for judgment against appellant for its failure to honor garnishment for
statutory six-month period, trial court erred in awarding appellee judgment
against appellant; debtor was independent contractor, and continuous

garnishment statute, TCA 26-2-214 only applies to employers. SunTrust Bank

v. Burke, 2/2/15, WS, Armstrong, 6 pages.
http://www.tncourts.gov/sites/default/files/suntrustopn.docx_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was not sufficient to convict defendant of felony
reckless endangerment when defendant was inside house at time of offense and
element of offense for which defendant was charged is that he discharged
firearm from outside of house in order to sustain conviction for felony
reckless endangerment, state would have to show that defendant was outside
victims home and fired shot into home. State v. Hatchel, 1/27/15, Jackson,
Woodall, 6 pages.
http://www.tncourts.gov/sites/default/files/hatchelrichardalanopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of

possession with intent to both sell and deliver cocaine and felony possession of
marijuana, trial court erred in failing to exclude evidence that prior search
warrants were executed on defendants residence and because evidence of prior
searches was presented first by state at trial, defendant was unfairly prejudiced;
trial courts pretrial ruling which granted states request to be allowed to make
preemptive strike against defendant with evidence of proper bad acts likely
forced defendant to testify; defendants convictions are reversed, and case is
remanded for new trial; evidence of prior searches is not admissible on retrial
unless trial court determines, not pretrial but at conclusion of any proof
presented by defendant, that state can meet its heavy burden in this case
showing that probative value of evidence of prior searches is not outweighed by
danger of unfair prejudice. State v. Gunn, 1/30/15, Jackson, Woodall, 8 pages.
http://www.tncourts.gov/sites/default/files/gunnbenjaminopn.pdf

CRIMINAL PROCEDURE: In both probable cause for arrest (or citation)

cases and reasonable suspicion for investigatory stop cases involving Class C
misdemeanor traffic offenses, it is not required that what officer observes be
enough evidence to support beyond reasonable doubt that driver has committed
Class C misdemeanor offense, thus, for probable cause or reasonable
suspicion analysis of stop based upon possible violation of TCA 55-8-123(1)
that driver must maintain vehicle entirely within single lane as nearly as
practicable conclusion in State v. Martin, 25 TAM 41-39 (Tenn.Cr.App.
2000), that momentary drift out of a lane [does not constitute] driving a
vehicle outside of a single lane is misplaced and should not be followed; all
drivers (including law enforcement officers, prosecutors, and judges) who
briefly cross fog line on highways in Tennessee may be pulled over on basis

that otherwise innocent driver has established probable cause that he or she
has committed Class C misdemeanor offense. State v. Smith, 2/2/15, Nashville,
Woodall, dissent by Ogle, 16 pages.
http://www.tncourts.gov/sites/default/files/smithlinzeydanielleopn.pdf
http://www.tncourts.gov/sites/default/files/smithlinzeydis.pdf

SIXTH CIRCUIT COURT OF APPEALS

CIVIL PROCEDURE: When decedent was denied utility services by
Memphis Light, Gas & Water (MLGW) in 2/10 because he did not possess
state-issued photo identification card, decedent, who lacked birth certificate,
was illiterate and had intellectual disabilities that made it difficult for him to
navigate process of obtaining necessary state identification, decedent lived
without utilities for over 18 months and died of heat stroke in 8/11, and
plaintiffs, decedents wife and sister, filed suit against MLGW asserting claims
under 42 USC 1983, Tennessee Governmental Tort Liability Act, and
Tennessees wrongful death statute, trial court erred in granting MLGW
summary judgment on basis of applicable statutes of limitation; having
borrowed Tennessees statute of limitation for 42 USC 1983 claim, states
tolling statute applies as long as result is not inconsistent with federal law or
policy; plaintiffs presented sufficient evidence of decedents mental disability,
and thus, applicability of prior version of Tennessees tolling statute, TCA 281-106, so as to create genuine issue of material fact as to whether decedent was
of unsound mind when this action accrued. Johnson v. Memphis Light Gas &
Water Division, 2/6/15, Stranch, 12 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/15a0023p-06.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 states web site by clicking here: http://www.tncourts.gov