Southeast Complex Litigation Forum Set for Sept. 7

The Southeast Complex Litigation Forum, a TBA CLE offering four general credits, will be Sept. 7 at the Tennessee Bar Center in Nashville. The seminar will cover the latest developments in mass torts, class actions and multi-district litigation (MDLs). You will learn from national litigators about the latest in cutting-edge aggregate litigation, including emerging litigation involving opioids, medical devices, pharmaceutical drugs and consumer products. The discussions will also include litigation tips and best practices on how to approach discovery in the post-proportionality world. Learn more and register here.
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Watch for Practice Tips from Your Appellate Section

Beginning with this issue, we will be sending you periodic tips on appellate practice. These may be based on new cases or rule changes or they may just be practice tips regarding existing sections of the Tennessee Rules of Appellate Procedure. We hope that you will find these tips worthwhile and we would appreciate it if you would spread the word that members of our section will begin receiving these tips.
Appellate Practice Tip #1: Bonds and Stay Orders
Pursuant to Rule 6 of the Tennessee Rules of Appellate Procedure, unless an appellant is exempted by statute or by rule, a bond for cost on appeal shall be filed by the Appellant in the trial court along with the Notice of Appeal. Tennessee Rule of Appellate Procedure 6(a) governs the requirements for surety and the rights of sureties on appeal.
Pursuant to Tennessee Rule of Appellate Procedure 7 and Rule 62 of the Tennessee Rules of Civil Procedure, a stay of the order of the trial court (such as an execution on a money judgment) may be sought in the trial court. Review of the trial court's order regarding the stay may be sought in the appellate court. Review of the trial court stay order or refusal of the issue of stay order may be sought in the Court of Appeals by filing a motion for review accompanied by the motion filed in the trial court. A party may appeal the Court of Appeals decision on a motion for review by filing a motion for review in the Supreme Court within 15 days of the filing of the Court of Appeals order. Any attempt to file the first motion for stay in the appellate court will generally be rejected. Stay orders should be sought first in the trial court and then, any aggrieved party may seek review of that order in the Court of Appeals.
Counsel for the party posting a bond and counsel for opposing party should review the language of the bond carefully. The precise language of the bond and/or any ambiguities in the language of the bond can become very significant. See e.g., Wright Medical Tech. vs. Bernard Grisoni & Biogeneration Inc., W2000-01302-COA-R7-CV (Dec. 18, 2001).
Buck Lewis, TBA Appellate Practice Section Chair
Baker, Donelson, et. al.
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Sen. Grassley Doesn’t Expect Imminent Supreme Court Vacancy

Sen. Chuck Grassley, R-Iowa, chair of the U.S. Senate committee that handles Supreme Court nominations, said he does not expect an imminent court vacancy, Reuters reports. The statement signals that Justice Anthony Kennedy will not retire this year, despite earlier speculation. "Evidently that's not going to happen," Grassley said. "I don't have any expectation we will have a vacancy as I thought there would be" earlier this year.
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Enroll in the Tennessee Supreme Court Academy

Learn about best practices in the Tennessee Supreme Court at a special CLE set for Sept. 6 for the University of Tennessee College of Law. Attendees will first observe oral arguments before the Tennessee Supreme Court and then attend follow-up sessions regarding appellate practice, advocacy, and ethical considerations.

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Appeals Court Confirms Sumner County Schools Violated Open Records Act

A Tennessee appeals court today sided with a Joelton man who sought records from the Sumner County School District but was denied, the Tennessean reports. The school system initially denied Ken Jakes his request on the basis that it was not made in person or via email. The appellate court upheld the original 2015 ruling from a Sumner County Criminal Court judge, which found Sumner County Schools in violation of the Tennessee Public Records Act.
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Be Admitted to Practice Before the U.S. Supreme Court

If admission to practice before the U.S. Supreme Court is one of your career goals, don’t miss the opportunity to make it a reality during the 34th Annual TBA Academy, Oct. 10-11. A select group of Tennessee attorneys will be able to take part in this private ceremony before the court and enjoy other events at the court and the capitol. A reception and celebration dinner kick off the Academy, which also includes the opportunity to earn three hours of CLE credit. The group will stay at the Hay Adams Hotel, where the TBA has obtained a special rate for Academy participants.

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SCOTUS Allows Extended Family Exemptions to Travel Ban

The U.S. Supreme Court today allowed a lower court’s decision to stand that would exempt grandparents, grandchildren and other extended family members from the Trump administration’s travel ban, the ABA Journal reports. The Court did block a portion of U.S. District Judge Derrick Watson’s ruling that exempted from the travel ban refugees who have formal help from a resettlement agency.
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Court Overturns Murder Conviction Over Suppressed Testimony

The Tennessee Court of Criminal Appeals overturned the second-degree murder conviction of Brandon Scott Donaldson and ordered a new trial, over testimony that was barred from the original trial, the Knoxville News Sentinel reports. Donaldson was convicted of the 2013 fatal shooting of his pregnant girlfriend Marcia Crider and her unborn child, as well as the attempted murder of Crider’s mother. However, testimony that the victim had told Donaldson news about transmitting a venereal disease to him just two hours prior to the crime could have swayed the jury to find Donaldson guilty of a lesser crime, such as voluntary manslaughter.
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Appellate Court Rules Landowners May Challenge TDOT Pipeline Permit

A judge found that two landowners do have standing to challenge a Tennessee Department of Transportation permit granted to US Nitrogen, which operates two 10-mile pipelines running along two state highways and could be intruding on the owners’ property, the Knoxville News Sentinel reports. Appeals Court Judge Brandon O. Gibson’s ruling completely reverses the decision of a lower court. US Nitrogen could be forced to remove the pipelines, which are being utilized in the production of ammonium nitrate, after the case goes back to Chancery Court to determine the legality of TDOT’s permits. 
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Notices of Appeal Must Be Filed with Clerk of the Appellate Courts

Beginning July 1, all Notices of Appeal filed with the Court of Appeals, Court of Criminal Appeals or Supreme Court must be filed in the office of the Clerk of the Appellate Courts rather than in the office of the Trial Court Clerk. The Rules of Appellate Procedure related to the filing of a Notice of Appeal directed to the Appellate Courts will change July 1. After that date, trial court clerks will no longer accept a Notice of Appeal for filing in their office. The Notice of Appeal must be filed in the office of the Appellate Court Clerk in the grand division of the trial court from which the appeal arises.

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Court Gives Memphis Man 2nd Chance in Drug, Deportation Case

A Memphis restaurant owner in jail and facing deportation after pleading guilty to a drug charge 7½ years ago will get another chance in court after the U.S. Supreme Court today vacated his conviction on grounds that he had been given bad legal advice, the Commercial Appeal reports. “He was really thankful that someone finally understood the harm that his lawyer’s advice caused him,” said Nashville attorney Patrick McNally, who is part of the legal team that handled the appeal.

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Notices of Appeal Must Be Filed with Clerk of the Appellate Courts

Beginning July 1, all Notices of Appeal filed with the Court of Appeals, Court of Criminal Appeals or Supreme Court must be filed in the office of the Clerk of the Appellate Courts rather than in the office of the Trial Court Clerk. The Rules of Appellate Procedure related to the filing of a Notice of Appeal directed to the Appellate Courts will change July 1. After that date, trial court clerks will no longer accept a Notice of Appeal for filing in their office. The Notice of Appeal must be filed in the office of the Appellate Court Clerk in the grand division of the trial court from which the appeal arises.

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Loving v. Virginia Turns 50

The landmark U.S. Supreme Court decision Loving v. Virginia, which declared anti-miscegenation laws unconstitutional, turns 50 today, and NPR has collected several audio clips from the dramatic trial. Many of the clips document arguments made by Bernard Cohen and Philip Hirschkop, two young lawyers from the American Civil Liberties Union who represented Richard and Mildred Loving, a white man and a black and Native American woman whose marriage was considered illegal in Virginia.
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Appellate Practice Section to Meet at TBA Convention

Please make plans to join the TBA Appellate Practice Section for a business meeting that will be held in conjunction with 2017 TBA Convention.  The TBA Appellate Practice Section meeting is scheduled as follows:


Thursday, June 15, 2017
2:00 – 3:00 p.m. Eastern


MeadowView Marriott
1901 Meadowview Parkway
Kingsport, TN 37660
(423) 578-6600

Room Location – Bays Mountain Boardroom

A conference call will be available for those unable to join us in person. The following are the instructions for joining the call:

You will dial in on the following number: 1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign: 5722409#

Items for discussion include:

  1. Collaboration with other Sections
  2. Ideas for CLE programming and webcasts
  3. What items would you like to see in your inbox?  Getting the most out of your Section Connects
  4. Pro Bono Opportunities
  5. Networking and Mentoring within the Section

There is still time if you would like to register for TBA Convention. You may register by calling the TBA at (615) 383-7421 or register online at:

2017 TBA Convention

You do not have to be registered for Convention to attend this Section meeting.  We hope to see you there!

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Court Holds Block on Second Trump Travel Ban

The Virginia-based 4th Circuit Court of Appeals has upheld the block on the Trump administration’s executive order restricting travel from six majority-Muslim countries, CNBC reports. This executive order follows an earlier one that was similarly struck down. The revised order was designed to better hold up to legal scrutiny. The ruling stated that the 4th Circuit panel was “unconvinced” that the order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”
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Attorney’s Posts Under Fictitious Name Raise Questions on 6th Circuit Nomination

A nominee for the Cincinnati-based 6th U.S. Circuit Court of Appeals and prominent Kentucky attorney admitted to authoring more than 400 blog posts under a pseudonym, the ABA Journal reports. Many posts authored by John K. Bush cover his personal thoughts on topics that are still under or subject to litigation, such as the Affordable Care Act and the public financing of political campaigns. The Alliance for Justice calls the nature of the posts “inflammatory and, often, offensive.”
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SCOTUS Holds Caps on Political Contributions

The U.S. Supreme Court yesterday affirmed a lower court’s decision upholding limits on direct contributions to political parties, the ABA Journal reports. Justices Clarence Thomas and Neil Gorsuch voted in dissent, indicating that on campaign finance cases, Gorsuch might lean as conservative as Thomas, who believes that all campaign finance limits should be subject to strict scrutiny.  
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Grundy County Man’s Guilt in Murder Conviction Questioned

In a case that calls into question the value of eyewitness testimony, the Knoxville News Sentinel examines the conviction of Adam Clyde Braseel, who was found guilty of murder and has served 10 years of jail time. In 2015, eight years after his original conviction, a judge ruled that Braseel was entitled to a new jury trial, as “identification alone is all that ties the petitioner to the crime,” but prosecutors appealed the judge’s decision and the state Court of Criminal Appeals sent him back. Braseel’s lawyer is currently planning to file a petition for another hearing.
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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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Call For Submissions — Law Practice Pointers

One of the benefits of being a TBA Section Member is having access to information from experienced practitioners to assist in your day-to-day practice. The sharing of this information amongst colleagues is one of the best traits of the profession. It is also a way of helping each other to maneuver the evolving legal market and strengthen your legal practice.

How can you help your fellow Section Members?  If you have some Law Practice Pointers you would like to share with your fellow section members, write an article between 300-500 words and submit it to the Section Coordinator for review and approval. These Law Practice Pointers can be related to a court opinion, piece of legislation, or current event or industry trend that affects the practice of law as it relates to the specific Section. The main requirement is to make sure the article gives lawyers practical tips, based on experience, to include in their day-to-day practice.

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Trump Names Nominees to Lower Courts

President Donald Trump nominated 10 lawyers to federal courts today, including two which were on his list of potential Supreme Court justices prior to his selection of Justice Neil Gorsuch, USA Today reports. Those two are Joan Larsen, a Michigan Supreme Court justice, who was nominated to serve on the U.S. Court of Appeals for the 6th Circuit, and David Stras, a Minnesota Supreme Court justice, who was nominated to the 8th Circuit. Three judges were named to other federal appeals courts, four were named to district courts and one to the U.S. Court of Federal Claims. The nominees were praised by conservative legal activists.
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Gorsuch Forgoes SCOTUS Law Clerk Pool

One month into his service on the U.S. Supreme Court, Justice Neil Gorsuch has decided not to join the labor pool in which justices share their law clerks, the New York Times reports. The only other member of the court who is not part of the arrangement is Justice Samuel Alito. The pool is designed to streamline decisions about which cases to hear, but has been criticized for giving too much power to law clerks and for contributing to the court’s shrinking docket.
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Tennessee Supreme Court Affirms Death Sentence for Premeditated Murder Conviction

The Tennessee Supreme Court has affirmed James Hawkins’ premeditated murder conviction and sentence of death for the 2008 murder of Charlene Gaither, Hawkins’s long-term girlfriend and the mother of his children. Proof at trial showed that Hawkins had murdered Gaither because she threatened to expose his sexual abuse of their daughter. The Court of Criminal Appeals upheld his convictions and the jury's death sentence. Upon its automatic review of the case, the Supreme Court ruled that, although Hawkins was illegally seized without a warrant, the admission into evidence of the statement he gave while illegally held was harmless error beyond a reasonable doubt, and any impropriety had not deprived Hawkins of a fair trial. Justice Cornelia Clark wrote the majority opinion, while Justice Sharon Lee authored a concurring opinion.

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Appeals Court Denies AG Request for Rehearing Death Row Case

The U.S. 6th Circuit Court of Appeals has declined to reconsider a decision that found the state had violated the due process rights of a death row inmate, the Commercial Appeal reports. In February, a panel of judges found that in the case of death row inmate Andrew Thomas, who was previously found guilty in the 1997 shooting of armored truck guard James Day, the prosecution failed to disclose to him that a witness had received $750 from the federal government before the trial.
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