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Today's Opinions

• TN Court of Appeals (2)
• TN Court of Criminal Appeals (4)
• 6th Circuit Court (Published Opinions) (2)

IN RE ENRIQUE F. ET AL.

Court: TN Court of Appeals

Attorneys:

Amy Long Schisler, Lawrenceburg, Tennessee, Guardian Ad Litem.

Teresa P. Martin, Lawrenceburg, Tennessee, for the appellees, D.E.W. and K.R.D.

Teresa B. Campbell, Lawrenceburg, Tennessee, for the appellee, E.F., Sr.

Judge(s): GOLDIN

This is an appeal from a termination of parental rights proceeding. Although the trial court found that certain grounds for termination were established against the children’s father, it determined that there was insufficient proof that termination was in the children’s best interests. On appeal, the guardian ad litem and prospective adoptive parents challenge the trial court’s best interests determination, as well as the trial court’s failure to conclude that other grounds for termination were established. Our review of the record reveals that no grounds for termination were properly found by the trial court, and we therefore affirm the trial court’s denial of the petition to terminate on this basis.

enriquef_051121.pdf

CLARKSVILLE TOWERS, LLC v. JOHN STRAUSSBERGER ET AL.

Court: TN Court of Appeals

Attorneys:

Todd E. Panther and Eric G. Osborne, Nashville, Tennessee, for the appellant, Clarksville Towers, LLC.

William H. Horton and Carol M. Ballard, Chattanooga, Tennessee, for the appellee, John Straussberger.

Judge(s): FRIERSON

This appeal concerns the potential personal liability of the owner of a corporation, which was engaged as the contractor in a multi-million-dollar construction project. The trial court granted summary judgment in favor of the construction company’s owner, determining that the owner could not be held personally liable for the corporation’s alleged violations of either the Tennessee Contractors Licensing Act, the Tennessee Consumer Protection Act, the Tennessee Trust Fund Statute, or the Prompt Pay Act. The plaintiff has appealed. Upon our de novo review, we affirm the grant of summary judgment to the corporation’s owner.

clarksvilletowers_051121.pdf

STATE OF TENNESSEE v. STEVEN MICHAEL SIMPSON

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr. (on appeal) and Mitchell T. Harper (at trial), Knoxville, Tennessee, for the appellant, Steven Michael Simpson.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Hector Sanchez and Keven Allen, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Steven Michael Simpson, appeals his Knox County Criminal Court jury conviction of first degree felony murder, arguing that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

simpsons_051121.pdf

MARCUS THURMAN WADE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Matthew S. Bailey, Spencer, Tennessee (on appeal); and Paul D. Cross and Howell G Clements, Monteagle, Tennessee (at hearing), for the Appellant, Marcus Thurman Wade.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Craig Northcott, District Attorney General; and Jason Ponder, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): OGLE

The Petitioner, Marcus Thurman Wade, filed for post-conviction relief from his two convictions of first degree murder and one conviction of especially aggravated robbery, arguing that he received the ineffective assistance of counsel. The post-conviction court denied the petition. On appeal, the Petitioner contends that trial counsel was ineffective by (1) advising the Petitioner not to testify; (2) failing to request a psychological evaluation of the Petitioner; (3) failing to introduce at the suppression hearing proof of the Petitioner’s mental capacity; (4) failing to challenge the racial composition of the jury venire; (5) failing to request funds for expert witnesses; (6) failing to investigate and review motel camera footage; and (7) failing to file a motion in limine to block evidence of the Petitioner’s drug transactions. Upon review, we affirm the judgment of the post-conviction court.

wadem_051121.pdf

STATE OF TENNESSEE v. BRADLEY ROBINSON

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk (on appeal) and Rhonda F. Lee (at trial), Knoxville, Tennessee, for the appellant, Bradley Robinson.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton and TaKisha Fitzgerald, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Defendant, Bradley Robinson, appeals his Knox County convictions for facilitation of first degree felony murder and facilitation of especially aggravated robbery, for which he received an effective sentence of thirty-seven years to serve in the Tennessee Department of Correction. On appeal, Defendant contends that the evidence presented at trial was insufficient to establish his guilt beyond a reasonable doubt. Following a thorough review, we affirm the judgments of the trial court.

robinsonb_051121.pdf

HOWARD BURNETT v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Howard Burnett.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The petitioner, Howard Burnett, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of first degree murder, alleging that he was deprived of the effective assistance of counsel. Because the petitioner failed to show that he was prejudiced by trial counsel’s representation, we affirm the denial of post-conviction relief.

burnetth_051121.pdf

DENECE THOMAS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED v. TOMS KING (OHIO), LLC; TOMS KING (OHIO II), LLC; TOMS KING SERVICES, LLC; DOES, 1–10, INCLUSIVE

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Chant Yedalian, CHANT & COMPANY, Glendale, California, for Appellant.

ARGUED: Gregory W. Guevara, BOSE MCKINNEY & EVANS LLP, Indianapolis, Indiana, for Appellees.

ON BRIEF: Chant Yedalian, CHANT & COMPANY, Glendale, California, Brian K. Herrington, CHHABRA GIBBS & HERRINGTON PLLC, Jackson, Mississipp, for Appellant.

ON BRIEF: Gregory W. Guevara, Elizabeth A. Roberge, Philip R. Zimmerly, BOSE MCKINNEY & EVANS LLP, Indianapolis, Indiana, for Appellees.

Judge(s): SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Northern District of Ohio at Cleveland

After receiving a credit card receipt printed with the first six and last four digits of her credit card, Plaintiff Denece Thomas (Plaintiff) sued Defendants TOMS King (Defendants) for violating the “truncation requirement” of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). That provision prohibits anyone who accepts credit or debit cards for payment from printing more than the last five digits of a customer’s card number on the receipt, and offers actual and statutory damages. The question before us is whether Defendants’ alleged violation of that statute resulted in harm sufficiently concrete for Article III standing purposes. The district court concluded that it did not and dismissed the case without prejudice for lack of subject matter jurisdiction. Plaintiff appeals that decision.

FACTA reflects Congress’s concern with preventing identity theft, and its belief that truncating card numbers is the most effective means of doing so. But a violation of the truncation requirement does not automatically cause an injury in fact. And the complaint in this case fails to establish that Defendants’ technical violation of the statute caused harm or presented any material risk of harm. We therefore affirm the lower court’s ruling.

thomasd_051121.pdf

ALANA HARRISON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. MONTGOMERY COUNTY, OHIO

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Emily White, DANN LAW, Cleveland, Ohio, for Appellant.

ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellee. ARGUED: Christina M. Martin, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amici Curiae.

ON BRIEF: Emily White, Marc E. Dann, DANN LAW, Cleveland, Ohio, Thomas A. Zimmerman, Jr., ZIMMERMAN LAW OFFICES, P.C., Chicago, Illinois, Andrew M. Engel, ANDREW M. ENGEL CO., LPA, Dayton, Ohio, for Appellant.

ON BRIEF: Stephen W. Funk, Emily K. Anglewicz, ROETZEL & ANDRESS, LPA, Akron, Ohio, Anne M. Jagielski, MONTGOMERY COUNTY, OHIO, Dayton, Ohio, for Appellee.

ON BRIEF: Christina M. Martin, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, Benjamin M. Flowers, Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amici Curiae.

Judge(s): SUTTON, Chief Judge, SUHRHEINRICH and SILER, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Southern District of Ohio at Dayton

SUTTON, Chief Judge. When an Ohio county forecloses on a tax-delinquent property, it ordinarily sells the property at an auction, keeps enough of the proceeds to cover the outstanding taxes, and returns any leftover funds to the owner. To stem a tide of vacant homes and to transfer ownership of them more efficiently, Ohio enabled its municipalities to take another route when it comes to abandoned tax-delinquent property. Instead of selling the property and collecting the taxes owed, counties may surrender their tax interest and transfer the property with clear title to land banks. The land banks may revitalize the abandoned property, sell it to a private buyer, or demolish the home to pave the way for new neighborhoods. No auction occurs when counties choose the land bank route, and any surplus equity held by the original owner vanishes.

Alana Harrison inherited a partial interest in her mother’s home in Dayton. Due to a nearly $20,000 property tax delinquency, Montgomery County’s treasurer started foreclosure proceedings in 2017. The County Board of Revision handled the foreclosure and transferred the home to the County’s land bank. The home had an estimated fair market value of $22,600 at the time of the transfer, roughly $3,000 more than the property taxes owed. Harrison never received the surplus equity because the statute offers no way to pay it.

Harrison filed an action against Montgomery County under the Takings Clause of the Fifth (and Fourteenth) Amendment of the United States Constitution. On top of seeking relief for herself, she also sought relief on behalf of a purported class of similarly situated landowners. The County moved to dismiss her claim, arguing that claim preclusion barred Harrison’s lawsuit because she could have raised a federal takings claim at several points during the foreclosure process. The district court agreed. In view of the intricate issues presented and the potential invalidity of an Ohio law, we solicited the participation of the Ohio Attorney General, whose office helpfully filed an amicus brief and participated in the oral argument in support of the County. We now reverse.

harrisona_051121.pdf