TBA Today - Thursday, October 15, 2020 - Your fastest source of appellate court decisions, Supreme Court rules and orders changes, attorney general opinions and other Tennessee legal community news.
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TBA Today
Thursday, October 15, 2020
Today's News

5 Apply for 16th Judicial District Circuit Court Vacancy

Five attorneys have applied for the 16th Judicial District Circuit Court vacancy, which includes Rutherford and Cannon counties. Those attorneys include: Joshua T. Crain, Trevor H. Lynch, John G. Mitchell III, Gingeree Smith and James A. Turner. The Trial Court Vacancy Commission will hold a virtual hearing using Zoom on Nov. 12 at 9 a.m. CST. The Commission will vote immediately after the hearing and forward three names to Gov. Bill Lee for consideration. The hearing will be livestreamed on the Administrative Office of the Court’s YouTube page. Interested individuals may also watch the livestream in the Jury Assembly Room of the Rutherford County Judicial Center, 116 W. Lytle St., Room 101, Murfreesboro. To address the Commission by video conferencing, email Ceesha Lofton or call 615-741-2687 by 4 p.m. CDT on Oct. 29.

 

Court of Criminal Appeals Vacancy Hearing Set for Oct. 26, 27

The Governor's Council for Judicial Appointments will hold a hearing to fill the Court of Criminal Appeals Middle Section vacancy on Oct. 26 and Oct. 27. The hearing will begin at 9 a.m. CDT on both days. This hearing will be held virtually and will be livestreamed for public viewing on the Administrative Office of the Court’s YouTube page. Interested individuals may also attend the virtual hearing at AOC headquarters, 511 Union St., Ste. 600, Nashville 37219, to watch and/or speak in opposition to any applicant. Anyone who wishes to address the Council via video conferencing should contact Ceesha Lofton or call 615-741-2687.  

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Former City Attorney Announces Candidacy for Chattanooga Mayor

Wade Hinton, vice president of diversity and inclusion for Unum and former attorney for the city of Chattanooga, today announced he will run for mayor of Chattanooga, the Times Free Press reports. Hinton was Chattanooga’s first African American city attorney from 2013- 2018. Prior to that he served as deputy general counsel for Volkswagen Group of America's Chattanooga operations after having worked at Miller & Martin, Snipes Roberson and Hinton and Shumacker & Thompson. Hinton was also a former director of the Hamilton County Title 6 program and served as a consultant to County Mayor Claude Ramsey on issues related to diversity and minority business programs. He served on the TBA Young Lawyers Division Board and was a member of the TBA Leadership Law Class of 2006. Hinton said he wants to lead Chattanooga as a city that doesn't just recover "but becomes a model for equity and diversity and inclusion in city government."

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Appeals Court Overturns Conviction of Ex-Pilot Flying J President

 The 6th Circuit U.S. Court of Appeals has overturned the convictions of former Pilot Flying J President Mark Hazelwood and two of his former staffers, the Knoxville News Sentinel reports. In a two-to-one decision, the federal appellate court ruled that U.S. District Judge Curtis Collier was wrong to allow prosecutors at the 2018 trial to play secret recordings of Hazelwood making racist comments and singing along to a racist song. The 6th Circuit ruled Collier’s decision to allow the tapes was legally flawed and his instruction to the jury inadequate, stating in their opinion that the “inflammatory nature of Hazelwood’s comments created a strong risk that the jury would convict him based on factors other than the charged conduct.” Hazelwood was convicted in 2018 after a four-month trial of conspiracy to commit wire fraud, wire fraud and witness tampering. It was not immediately known if the U.S. Attorney’s office will seek to appeal the decision.

 
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Tennessee Smashes Record for First Day of Early Voting

According to the Secretary of State’s office, a record-breaking 273,325 Tennesseans have cast their ballot by voting early or absentee voting—a 91% increase from the first day of early voting in 2016 and a 120% increase over 2012. Early voting for the state and federal primary and county general election runs Monday to Saturday until Oct. 29. Election Day is Nov. 3.Voting and election day hours, polling locations and more can be found at GoVoteTN.com or with the GoVoteTN app.

Report Shows Rise in Tennesseans Unable to Vote Because of Felony

The number of Tennesseans who cannot vote due to a felony conviction has risen since 2016, despite a national trend in the opposite direction, WPLN reports. That data comes from a new report from the Sentencing Project, which found that 5.2 million Americans cannot vote because of a criminal record. Tennessee, which has some of the strictest voter restoration rules in the country, accounts for more than 456,000 of that number. The report found that Tennessee has the highest rate of disenfranchised Latino voters in the country, at over 10%. The state also ranks second for the overall percentage of voting age residents who can’t vote due to a felony conviction, as well as for the percentage of Black voters banned from the polls. In the past four years, an additional 35,000 Tennesseans with felony convictions have lost the right to vote. Meanwhile, just 35 have restored their right to vote.

 
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Scoville Named Institute for Free Speech Adjunct Fellow

George Scoville, an associate in the Lewis Thomason Nashville office, has been named an adjunct fellow with the Institute for Free Speech. IFS is the nation’s largest organization dedicated solely to protecting First Amendment political speech rights. In his role as an adjunct fellow, Scoville will provide commentary on topics related to the organization’s mission. Most recently, he helped scrutinize Judge Amy Coney Barrett’s judicial record in free speech cases. Scoville represents global and national consumer product brands in products liability actions in the state and federal courts for Lewis Thomason. Additionally, he is adjunct professor of American Government and Constitutional Law in the Department of Political Science in the College of Liberal Arts and Social Sciences at Belmont University. Scoville earned his law degree from the University of Memphis Cecil C. Humphreys School of Law. He is a member of the TBA Young Lawyers Division, as well as a member of the Federal Practice and Litigation sections.  

 
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National Symposium on Racial Equity Starts Tomorrow

The National Consortium on Racial and Ethnic Fairness in the Courts will host its 2020 Symposium on Racial Equity over the course of two-days, beginning tomorrow from noon until 4 p.m. EDT. The program is free and open to the public and will look at critically important issues in the context of advancing racial equity and equal justice under the law. Tomorrow’s program will include a session on examining barriers to civic engagement for people with a felony, followed by a roundtable on ensuring equal access to justice through the courts. The program will continue on Nov. 13 with sessions on reimagining policing and removing confederate statues from public squares. The program is free, but attendees must register in advance.

 
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Reminder: CLE on Basics of Elder Law Next Week

TBA CLE will host Elder Law Basics 2020 on Oct. 22 from 10 a.m. until 2 p.m. CDT. This virtual program is designed for attorneys new to the practice, or those looking to brush up on their knowledge in the area. Programming includes an overview for the intangibles of Elder Law, including powers of attorney, estate recovery, reverse mortgages, how clients can find and afford health care in retirement, ethics and more. Don’t miss this opportunity to learn from seasoned practitioners providing the information you need to stay on top of developments and changes in the field. Course material and instructions on how to connect to the program via Zoom Webinar will be sent to registrants the week of the program.

 
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Time Miner Makes Billing Simple

Time Miner is a retroactive time capture tool that automatically creates time entries for calls, texts and emails. It is compatible with Android and iOS, and currently integrates with Clio, Gmail, Outlook and RingCentral. All information and data collected by Time Miner is stored locally and is accessible only on the user's device. Time Miner uses bank-grade encryption and security to keep data safe and accessible. TBA members receive a 30% lifetime discount. Email sales@timeminerapp.com for the member discount code.

 
Court Opinions

You can obtain full-text versions of these opinions by selecting the link below each opinion’s summary paragraph. Your email software should give you the option of reading the opinion online or downloading it to your computer or mobile device. Decisions from the 6th Circuit Court that are not designated for publication are not included in this report.

JEREMY ARCHER ET AL. v. THE HOME TEAM, INC. ET AL.

Court: TN Court of Appeals

Attorneys:

Jay B. Jackson, Murfreesboro, Tennessee, for the appellants, Jeremy Archer and Crystal Archer.

Janet Strevel Hayes and Ann Hogan Murphy, Knoxville, Tennessee, for the appellee, The Home Team, Inc.

David A. Bates and Keaton A. Rye, Franklin, Tennessee, for the appellee, Steven Taylor.

Judge(s): CLEMENT

This appeal arises from an alleged misrepresentation of real estate acreage. The plaintiffs commenced an action against both the real estate agent and the seller claiming they misrepresented that the property was 1.9 acres when it was only 1.16 acres. They asserted claims against the real estate agent for misrepresentation and concealment and claims against the seller for, inter alia, misrepresentation, concealment, and breach of contract. Following discovery, the seller and real estate agent each filed motions for summary judgment. The trial court summarily dismissed all claims against the real estate agent. The court granted the seller partial summary judgment dismissing the claims based on misrepresentation, concealment, and breach of contract. We affirm the dismissal of the misrepresentation claims against both defendants because the undisputed facts establish that the plaintiffs did not rely on the alleged misrepresentations in deciding to purchase the property. We also affirm the dismissal of the plaintiffs’ concealment claims based on the plaintiffs’ constructive notice of the correct acreage by way of a publicly recorded plat. Additionally, we affirm the summary dismissal of the breach of contract claim given that the warranty deed identifies the property by reference to the recorded plat, which shows the correct acreage.

archerj_101520.pdf

IN RE JOHN B.

Court: TN Court of Appeals

Attorneys:

Bert W. McCarter, II, Murfreesboro, Tennessee, for the appellant, Scott H.B.

Lisa C. Cothron, Lafayette, Tennessee, for the appellee, Nedra D.P.

Judge(s): STAFFORD

Father appeals the trial court’s decision to reduce his parenting time significantly. Discerning no reversible error, we affirm.

johnb_101520.pdf

JAMES JUSTICE v. PAUL GAITER ET AL.

Court: TN Court of Appeals

Attorneys:

Drew Justice, Murfreesboro, Tennessee, for the appellant, James Justice.

Paul Gaiter, Nashville, Tennessee, Pro Se.

Jason A. Lee and Laura E. Bassett, Nashville, Tennessee; and Jeffrey R. Kohl, Oklahoma City, Oklahoma, for the appellee, Mid-Century Insurance Company.

Judge(s): CLEMENT

This appeal arises from a motor vehicle accident in a shopping center complex during the Christmas season. Plaintiff appeals the jury’s finding that he was sixty percent at fault for the accident and the trial court’s denial of his motion for a new trial. Finding that the jury’s apportionment of fault is supported by material evidence and that the trial court did not abuse its discretion in denying the motion for a new trial, we affirm the trial court in all respects.

justicej_101520.pdf

RODNEY STAFFORD ET AL. v. CHRISTY M. LUCAS, A.P.N. ET AL.

Court: TN Court of Appeals

Attorneys:

Louis P. Chiozza, Jr. and Christopher W. Lewis, Memphis, Tennessee, for the appellants, Rodney Stafford and Cindy Stafford.

Timothy G. Wehner and Brandon J. Stout, Memphis, Tennessee, for the appellee, Christy M. Lucas, A.P.N. and First Choice Urgent Care, LLC, a/k/a, d/b/a First Choice Care.

Judge(s): STAFFORD

The trial court dismissed this lawsuit for failure to timely serve the defendants after finding that it was “unaware of an exception to this rule or authority to expand the time for service.” Prior to the hearing, however, the plaintiffs filed a motion for enlargement of time under Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court did not specifically address this motion. As such, the trial court’s dismissal of the complaint is vacated, and this matter is remanded with instructions for the trial court to rule on plaintiffs’ motion for an enlargement of time.

staffordr_101520.pdf

 

STATE OF TENNESSEE v. GIL JACKSON GROSECLOSE

Court: TN Court of Criminal Appeals

Attorneys:

Lesley A. Tiller, Assistant District Public Defender, Blountville, Tennessee, for the appellant, Gil Jackson Groseclose.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Mitchell B. Watson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): OGLE

The Appellant, Gil Jackson Groseclose, pled guilty in the Sullivan County Criminal Court to driving under the influence (DUI) and DUI, per se, and the trial court convicted him after a bench trial of DUI, second offense. The trial court merged the convictions, Class A misdemeanors, and sentenced the Appellant to eleven months, twenty-nine days to be served as one hundred twenty days in jail followed by supervised probation. On appeal, the Appellant claims that the evidence is insufficient to support his conviction of DUI, second offense, because the judgment of conviction for his prior DUI was void and that the trial court erred by ordering confinement of more than the mandatory minimum sentence in jail. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

grosecloseg_101520.pdf

 

MEMPHIS A. PHILIP RANDOLPH INSTITUTE; THE EQUITY ALLIANCE; FREE HEARTS; THE MEMPHIS AND WEST TENNESSEE AFL-CIO CENTRAL LABOR COUNCIL; THE TENNESSEE STATE CONFERENCE OF THE NAACP; SEKOU FRANKLIN v. TRE HARGETT; MARK GOINS; AMY P. WEIRICH

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Danielle Lang, Jonathan Diaz, Molly Danahy, Ravi Doshi, Caleb Jackson, CAMPAIGN LEGAL CENTER, Washington, D.C., William L. Harbison, Christopher C. Sabis, SHERRARD, ROE, VOIGT & HARBISON, PLC, Nashville, Tennessee, for Appellants.

ON BRIEF: Sarah K. Campbell, Matthew D. Cloutier, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

Judge(s): MOORE, GIBBONS, and READLER, Circuit Judges.

Court Appealed: Appeal from the United States District Court for the Middle District of Tennessee at Nashville

JULIA SMITH GIBBONS, Circuit Judge. In the midst of the COVID-19 pandemic, absentee voting has found its way into the spotlight. Record numbers of voters are expected to vote by mail in the November 2020 election, and the increased interest in absentee voting has also led to increased interest in the policies and procedures governing how and when voters may vote absentee. In resolving cases of significant public interest, judges must, as they do in all cases, reach decision by employing independent, unbiased analysis, based on the law and the facts of a particular case.

The plaintiffs in this case consist of individuals and organizations located in Tennessee, and together they have brought five claims challenging the Tennessee statutory scheme that governs absentee voting. One claim challenges the eligibility criteria that Tennessee has imposed for absentee voters, one claim challenges limits on the plaintiffs’ ability to distribute unsolicited absentee ballots, two claims challenge Tennessee’s procedures for verifying voter signatures on absentee ballots, and the final claim challenges a restriction on first-time voters’ ability to vote absentee. Our decision today deals only with the two claims involving Tennessee’s signature verification procedures. For the reasons that follow, we AFFIRM the district court’s order denying the plaintiffs’ requested preliminary injunction on those claims, although we do so on a basis different from that relied on by the district court.

hargettt_101520.pdf

UNITED STATES OF AMERICA v. ANTHONY R. PALOS

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant.

ON BRIEF: Rebecca C. Lutzko, Robert J. Kolansky, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Judge(s): ROGERS, SUTTON, and STRANCH, Circuit Judges

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

ROGERS, Circuit Judge. Anthony Palos pleaded guilty to being a felon in possession of a firearm and was sentenced to 63 months’ imprisonment. Palos makes two challenges to his sentence on appeal. First, he argues that one of his previous drug trafficking convictions no longer qualifies as a “controlled substance offense” after our decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), and therefore his base offense level under the Guidelines was miscalculated. The Government concedes that our reading of Havis in United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020), is controlling on this issue and that a remand is warranted. Second, Palos argues that he should not have received a sentencing enhancement for possession of a stolen firearm because he had no knowledge that the firearm he possessed was stolen. But our rejection of the same contention in United States v. Murphy, 96 F.3d 846 (6th Cir. 1996), remains good law notwithstanding the more recent decisions of United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996), Havis, and Rehaif v. United States, 139 S. Ct. 2191 (2019).

For the reasons set forth above, we reverse in part the judgment of the district court and remand for resentencing. We affirm the district court’s decision to impose a two-level enhancement for possession of a stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A).

palosa_101520.pdf

 

Questions, comments: Email us at TBAToday@tnbar.org

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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