JUDY KYLE v. CITY OF JACKSON, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Spencer R. Barnes, Jackson, Tennessee, for the appellant, Judy Kyle.

Robert O. Binkley, Jr. and James V. Thompson, Jackson, Tennessee, for the appellee, City of Jackson, Tennessee.

Judge: STAFFORD

This is a Governmental Tort Liability Case. The trial court determined that Appellant was at least 50% at fault for the injuries she sustained when she fell from an elevated stage at an event held at a building, which is owned and operated by Appellee City of Jackson. Discerning no error, we affirm.

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DKB TRUCKING COMPANY, LLC v. JNJ EXPRESS, INC.
Court: TN Court of Appeals

Attorneys:

Timothy A. Housholder, Knoxville, Tennessee, for the appellant, DKB Trucking, LLC.

Trevor L. Sharpe and Raymond G. Lewallen, Jr., Knoxville, Tennessee, for the appellee, JNJ Express, Inc.

Judge: BENNETT

Plaintiff sued for damages for the destruction of a tractor and trailer and for the loss of its use. Defendants moved for a directed verdict, arguing that loss of use and/or loss of profits cannot be recovered because the property was destroyed and it was not unique. The jury found liability for the destruction of the property and for loss of use and/or loss of profits. The trial court then granted a directed verdict on the loss of use/loss of profits, stating that such damages cannot be recovered for destroyed property. Plaintiff appeals. We reverse.

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     As the new Chair of the Immigration Law Section, I am honored to follow in the footsteps of my predecessors who worked tirelessly to create our section and help grow its membership. Our section is one of the newest sections of the Tennessee Bar Association. In our short existence, we have liaised with immigrant advocates and governmental agencies. We pride ourselves on bringing you timely immigration updates and relevant CLE offerings. The Executive Council is working on the following upcoming events.

     In mid-November, we will be offering a webinar on Deferred Action for Childhood Arrivals (DACA) Update. As you know, many of our clients are reluctant to file DACA applications because of the fear that under a new administration there will be a repeal of DACA. We are looking for speakers who would like to share their practice pointers with the Section. Please contact me if you are interested in participating in this webinar.

     Save the date! On Thursday, April 18, 2013, our section will offer a full day CLE, broken into 2 - three hour sessions, at the TBA Center in Nashville. This year we are focusing on building our litigation skills and criminal immigration issues. I am very excited that Elliott Ozment, fresh from his 287(g) litigation in the Tennessee Supreme Court, will be heading this program. 

     The USCIS Vermont Service Center and I are in discussion to bring you a free Webex training on T, U, & VAWA. The training will be led by officers of the VAWA Unit. More details to follow.  If you have any suggestions as to how we can improve your membership experience, feel free to drop me an email at elaine@wittylaw.com.

Very truly yours,

Elaine H. Witty

By Mohammad A. Syed*

There are many immigrant attorneys in the U.S. like myself.   After almost 12 years of law practice with private law firms in both D.C. and Nashville, I have recently started my law firm and focus, in part, on immigration matters.  As I write this, I am still feeling the joy of my very own recently filed application for U.S. citizenship.  This is an important milestone in my life and a good time to share my own immigration journey.

By Bruce E. Buchanan*    

     Many immigration attorneys regularly represent clients on a pro bono basis or engage in other types of pro bono activities. I urge all attorneys, especially immigration attorneys, to accept at least one pro bono Deferred Action for Childhood Arrivals case.

     There are several opportunities for attorneys to get involved in pro bono work in Deferred Action cases. First, there is the traditional way of consulting with an individual who does not have the means to pay your legal fee and agreeing to represent the individual pro bono in the filing for Deferred Action.

     Alternatively, many organizations, such as Justice for Our Neighbors (JFON), have set up legal clinics on weekends and/or weeknights, for individuals, who believe they qualify for Deferred Action, in order to meet with attorneys.  The attorney who may either agree to handle their Deferred   Action filing with full representation or review with them their paperwork – I-821D, I-765 and I-765WS and supporting documentation – and determine whether it is complete. At this point, the attorneys will consult with the individuals concerning any criminal issues that could impact their filing.

     I can tell you from personal experience it is rewarding to help our undocumented youth file for Deferred Action. I urge all to be able to share that experience.

_________________

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law as well as employment/labor law. Mr. Buchanan is past-chair of the Tennessee Bar Association's Immigration Law Section as well as the current editor of the TBA's Immigration Law Section Newsletter and TBA's Labor and Employment Law Section Newsletter. He is a blogger for ILW.com (http://blogs.ilw.com/immigrationcompliance/) and E-Verify and I-9 News (http://everifyandi9news.com) on employer immigration compliance. Mr. Buchanan may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Steve Wilson*

     There is an old saying that a person who represents himself has a fool for a lawyer. However, some political figures are urging undocumented immigrants, who may qualify for the Obama Administration’s increased scope of deferred action relief, to represent themselves.This advice is both foolish and dangerous.

     In early August 2012, a dozen congressmen joined together to warn those who may qualify under the newly expanded scope of Deferred Action for Childhood Arrivalsabout “attorneys, sometimes referred to as ‘notarios,’ seeking payment.” Rep. Xavier Becerra declared, without qualification, that “[applicants] don’t need an attorney.”  Senator Dick Durbin and Rep. Luis Gutiérrez also voiced their fears of potential abuses by notarios and attorneys.  Such broad sweeping statements will likely only add to misunderstanding of this new process and ignorance to the potential pitfalls without informed advice from a qualified immigration attorney.

     The term notario often carries a great deal of respect in the Hispanic community (more than attorneys at times). This makes statements from public figures that use the labels attorney and notario interchangeably particularly insensitive.  Of course, it is right to illustrate risks posed by unscrupulous notarios, and sadly a few attorneys, to the estimated 1.7 million undocumented young people who may be eligible for this newly extended relief. However, public figures must also clarify that in this country a notario is not equal to a licensed attorney who is regulated by a strict professional code of ethics and who provides the safety of attorney-client privilege. 

     Immigration attorneys have been at the forefront of articles and TV coverage to highlight the dangers of consulting notarios and attempt to balance Rep. Becerra’s flawed reasoning that legal assistance is unnecessary.  We do a disservice when we permit a public perception to be created that attorneys are equal to or no better than notarios simply because of a few rotten apples.  

     “Hope can be a dangerous thing,” to paraphrase the character, Red, from the movie, Shawshank Redemption.  Sometimes hope can be so earnest that it drowns out reason. For example, a lady came by my office in July to discuss what she had preemptively labeled “Obama’s DREAM Act.”  I pointed out to her this was not the DREAM Act, but an extension of prosecutorial discretion to “defer” from pursuing certain removal cases.  As it happened, the lady was a perfect candidate for deferred action.  However, I wanted to strongly express to her this was not a silver bullet for the many frustrations that dogged her undocumented life.  Nor is it a pathway to citizenship. I also explained to her that if President Obama lost the election in November, there was no guarantee that President Romney would respect the existence of this new prosecutorial no-fly zone.  I was as stark as I could be in talking about the elephant in the room (no pun intended to my Republican friends), and that her name and information would then be on record with the authorities. The lady, however, refused to acknowledge the risks posed by the outcome of the approaching hotly contested election.  She was adamant that she was going to apply for deferred action on August 15, 2012, come hell or high water. 

     It occurred to me that if this smart lady was so fixed on deferred action, regardless of possible consequences, then it would be nearly impossible to explain the impact of those same dangers to an individual a shade slower on the draw.  People so desperate to escape the shadows of undocumented life will likely hand over their hard earned cash to any notario willing to share in smiles of enthusiasm without the least effort to alert their clients to political big picture concerns, let alone have the ability to give advice on the still rather muddy definition of “significant misdemeanor offense.”    

     Accordingly, advice that discounts wholesale the need to consult an attorney when applying for deferred action is both foolish and dangerous. Attorneys are not a superfluous expense, but the guardians are necessary for its success. Their participation will decrease the number of opportunities available for the unregulated notarios.  Furthermore, the statements of people who should know better, that attorneys and notarios are the same, potentially exposes the entire undocumented community to false assumptions that there may be no need for a lawyer in other situations, too.

___________________

*Steve Wilson is a solo practitioner in Memphis, Tennessee, at The Steve Wilson Firm. His areas of practice include employment, small business issues, personal injury, immigration and family law. He is licensed to practice in both Tennessee and California. As a Welsh immigrant, it is the field of immigration law practice that Steve finds the most fulfilling way to help out fellow newcomers to America and hopefully helps make their lives here as great as they dreamed it could be.  Steve can be contacted at steve@stevewilsonfirm.com.

By Adrienne Kittos*

     On June 15, 2012, Secretary of Department of Homeland Security Janet Napolitano issued a memorandum regarding the exercise of prosecutorial discretion in cases involving certain individuals who arrived in the United States as children.  The process went into effect on August 15, 2012.

     Individuals whose requests are approved will receive a 2-year grant of deferred action, a discretionary decision by DHS not to pursue immigration enforcement. The policy does not grant lawful immigration status or lead to permanent residence. Those granted deferred action can receive employment authorization if they establish economic necessity for employment.

Basic Eligibility Requirements

     To be eligible for deferred action under this program, the individual:

1.     Must have been under the age of 31 as of June 15, 2012;

2.     Must be at least 15 years old when filing unless one is in removal proceedings;

3.     Must have come to the United States before reaching his 16th birthday;

4.     Must have continuously resided in the U.S. from June 15, 2007 to the present;

5.     Must have been physically present in the U.S. on June 15, 2012, and at the time of making his request for consideration of deferred action with USCIS;

6.     Must have entered without inspection before June 15, 2012, or lawful immigration status must have expired as of June 15, 2012;

7.     Must be currently enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained a GED certificate, or have been honorably discharged from the Coast Guard or Armed Forces; and

8.     Must not have been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Potential Risk

     USCIS has said that the information gathered as part of the application process is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement, unless the requestor meets the criteria set forth in USCIS’s Notice to Appear Guidance. The information can be shared with law enforcement agencies, including ICE and CBP, for other purposes, including investigation or prosecution of criminal offenses, for purposes of national security, and to identify fraudulent claims. This policy will also cover family members and guardians of requestors. However, USCIS has stated that the policy may be modified, superseded, or rescinded at any time, and does not create any substantive or procedural right or benefit.

     There is also the possibility that a change in policy might make the deferred action protection unavailable in the future (i.e., if Mitt Romney were elected and decided to discontinue Deferred Action). Because DACA does not lead to lawful status or permanent residence, requestors should be aware of this possibility.

     Attorneys should talk with their clients about the potential risks involved in making a request for DACA; particularly for a person who might fall within one of USCIS’s NTA criteria, available at: www.uscis.gov/NTA. Clients should also be aware that USCIS intends to treat requestors who knowingly make a misrepresentation or fail to disclose facts as an immigration enforcement priority to the fullest extent permitted by law.

Entry and Physical Presence Requirements

     In addition to having entered the United States before their 16^th birthday, requestors must demonstrate that they were continuously present in the U.S. from June 15, 2007 through the present, they were physically present in the U.S. on June 15, 2012, and at the time of their DACA application. They cannot have traveled outside the U.S. since August 15, 2012.

     Continuous residence in the U.S. may have been broken by a brief, innocent, and casual absence from the country. In determining whether an absence was “brief, innocent, and casual,” USCIS will look at whether the length of the absence was reasonably calculated to accomplish the trip’s purpose, and whether the individual’s purpose and/or actions outside the U.S. were contrary to law. The absence cannot have been the result of an order of removal, exclusion, deportation, or voluntary departure.

Education

     On the date of the application, the requestor must 1) be enrolled in a public or private elementary, middle, or high school; 2) have graduated from or completed high school; 3) have received a GED; 4) be enrolled in an educational program intended to assist students in obtaining a high school diploma or equivalent, or in passing a GED or equivalent exam;  or 5) be enrolled in an education, literacy, or career training program designed to lead to post-secondary education, job training, or employment.

     Students enrolled in GED prep or job-training programs will need to demonstrate either that the program is funded, in whole or in part, by federal or state grants, or that it is administered by a provider of demonstrated effectiveness. The burden will be on the requestor to show the program’s effectiveness, which they can do by submitting proof of how long the program has been in existence, its track record in assisting students in meeting its objectives, and any other indicator of the program’s quality.

Criminal Issues

     For purposes of the DACA request, a felony will include any federal, state, or local crime that is punishable by imprisonment for a term that exceeds one year. State law immigration crimes, whether categorized as felonies or misdemeanors, will not be treated as disqualifying felonies or misdemeanors in the process.

     A significant misdemeanor is any misdemeanor (a crime for which the maximum term of imprisonment authorized is one year or less, but greater than five days) that meets one of the following two criteria:

-Regardless of sentence imposed, an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or

-Regardless of the type of offense, an offense for which the individual was sentenced to time in custody of more than 90 days. This does not include a suspended sentence, or time in custody pursuant to an ICE detainer.

     A non-significant misdemeanor is any misdemeanor which does not also meet one of the criteria for a significant misdemeanor. Three or more non-significant misdemeanors, not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, will make the individual ineligible for deferred action under DACA, except in exceptional circumstances.

     Minor traffic offenses, such as driving without a license, will not be considered misdemeanors for purposes of the DACA process, and expunged and juvenile records will not automatically disqualify the requestor. A juvenile who was tried and convicted as an adult will have the conviction considered in the same way as any other adult conviction. The USCIS can consider the entire criminal history along with other facts to determine whether the requestor warrants an exercise of prosecutorial discretion.

DACA Request

     Requestors must fill out Form I-821D, Form I-765 - Application for Employment Authorization, and the new Form, I-765WS, which establishes the applicant’s economic necessity for employment.  The fee for the application, including biometrics, is $465, and a fee waiver is not available, though a fee exemption is available in limited circumstances. The exemption must be approved before the requestor can submit his DACA request without a fee.

After filing

     In the event of a denied DACA request, the requestor cannot file a motion to reopen or reconsider, or appeal the decision. A review can only be requested if the denial was based on abandonment of a claim, though the requestor did respond to a Request for Evidence by the deadline, or if USCIS mailed the Request for Evidence to the wrong address, though the requestor had kept his address up-to-date with USCIS.

For More Information

     USCIS has published an extensive list of Frequently Asked Questions, available at:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

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*Adrienne Kittos is the Regional Attorney for Tennessee Justice for Our Neigbors (TN-JFON). She received her law degree from Vanderbilt University Law School in 2009 and her undergraduate degree from Vanderbilt University in 2006. During law school, Mrs. Kittos gained experience in the immigration field through work at the Tennessee Coalition against Domestic and Sexual Violence Immigrant Legal Clinic and the Rose Immigration Law Firm. She joined TN-JFON through Vanderbilt's Public Interest Stipend Program in the fall of 2009. Mrs. Kittos may be reached at adrienne.tnjfon@gmail.com or (615) 823-1945.

Starting with this issue, each newsletter will be designed around one or two themes. This issue concerns Deferred Action for Childhood Arrivals as well as Citizenship (September 17 is Constitution Day and Citizenship Day).  I would like to thank the authors for the articles in this issue, Adrienne Kittos, Steve Wilson, Mo Syed, Elliott Ozment and myself. If you have an article or a suggestion, please e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.  

Bruce Buchanan

DORIS HINKLE, ET AL. v. KINDRED HOSPITAL, ET AL.
With a concurring in part and dissenting in part opinion

Court: TN Court of Appeals

Attorneys:

Bede O. M. Anyanwu, Jackson, Tennessee, for the appellant, Doris Hinkle, Executrix of the estate of Muriel Jesse Hinkle deceased, and Doris Hinkle.

Heidi Anne Barcus, Hillary Browning Jones, Daniel T. Swanson, Knoxville, Tennessee, for the appellee, Dr. Tuan Quoc Nguyen; Harry Peoples Ogden, Kenny L. Saffles, Carrie C. McCutcheon, Knoxville, Tennessee, for the appellee, Kindred Hospital.

Judge: COTTRELL

The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.

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ANNA PARKER, ADMINISTRATOR OF ESTATE OF WANDA FAYE DOBBS, DECEASED ET AL. v. PORTLAND NURSING & NURSING REHAB ET AL.
Court: TN Court of Appeals

Attorneys:

Deborah Truby Riordan, Little Rock, Arkansas; Cameron C. Jehl and Carey L. Acerra, Memphis, Tennessee, for the appellant, Anna Parker, Administrator of the Estate of Wanda Faye Dobbs, deceased, and on behalf of the wrongful death beneficiaries of Wanda Faye Dobbs.

Heidi A. Barcus, Jennifer Pearson Taylor, and Ian P. Hennessey, Knoxville, Tennessee, for the appellees, Portland Nursing and Rehab Center, Inc. D/b/a Highland Manor Nursing & Rehab Center, Sunbelt Health Care Centers, Inc. A/k/a Adventist Care Centers, Adventist Health System Sunbelt Healthcare Corporation, and Adventist Health System/Sunbelt, Inc.

Judge: CLEMENT

In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case. The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants. Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26- 121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion

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