TBA Today - Wednesday, November 18, 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
Wednesday, November 18, 2020
Today's News
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State Supreme Court Suspends Jury Trials Through End of January

The Tennessee Supreme Court this week issued an order, following several since March, to deal with the COVID-19 pandemic. The order comes in response to several factors including a significant increase in COVID-19 cases in the state and a number of reports of instances of failure to comply with written plans of judicial districts by judges, attorneys and litigants, including the appearance in open court of attorneys and litigants who have tested positive for COVID-19. The order reaffirmed a mandatory face coverings requirement and suspended all jury trials through Jan. 31, 2021, (with exceptions granted by the chief justice on a case-by-case basis). The TBA is aware that many attorneys have reported issues of concern to the court throughout the pandemic. As part of the TBA’s ongoing commitment to collecting data and working with Tennessee’s legislative, judicial and executive branches on solutions for attorneys, the TBA has created an email account for lawyers to use for communicating concerns related to the pandemic and their practices. Please submit comments to pandemic@tnbar.org. Feel free to share this email address with others.

 
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Experts Predict DOJ Revamp, Policing Focus in Biden Administration

President-elect Joe Biden likely will move quickly to reestablish Obama-era priorities within the U.S. Department of Justice and focus on police accountability, criminal justice experts tell Law360. Among the moves expected are a strengthening of the Civil Rights Division, reinstatement of the Office for Access to Justice, and return of “pattern and practice” investigations into police departments accused of misconduct. Democratic congressional leaders also are expected to push for police reforms like a federal chokehold ban and ending qualified immunity.

Judge: DHS Head Didn't Have Authority to Suspend DACA

A federal judge in New York has ruled that Acting Department of Homeland Security Secretary Chad Wolf assumed his position unlawfully, which invalidates his suspension of the Deferred Action for Childhood Arrivals (DACA) program. "DHS failed to follow the order of succession as it was lawfully designated," U.S. District Judge Nicholas Garaufis wrote. "Therefore, the actions taken … were taken without legal authority." Wolf issued a memorandum in July effectively suspending DACA, pending review by DHS. A month earlier, the U.S. Supreme Court had ruled that President Donald Trump failed to follow rule-making procedures when he tried to end the program, but the justices kept a window open for him to try again. Fox 17 has the news.

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Attorneys for Female Death Row Inmate Diagnosed with COVID, Seek Delay in Execution

Federal public defenders representing the first female inmate set to be executed by the U.S. government in almost 70 years have fallen sick with COVID-19 following a visit to see her in federal prison, the Associated Press reports. Lisa Montgomery is set to be put to death on Dec. 8 for murdering a Missouri woman in 2004 and kidnapping her unborn child. The two attorneys were pursuing a petition for clemency and visited Montgomery at a federal medical center in Texas. They are now asking for an injunction postponing the execution until a thorough clemency appeal can be prepared. Observers expect the petition to focus on fetal brain damage Montgomery experienced and a horrifying childhood that involved incest, gang rape, child sex trafficking, physical abuse and neglect. Meanwhile, the ACLU has filed an injunction to end what it says is “torturous” conditions of Montgomery's imprisonment, The Hill reports. She is being held in a cold cell where male guards watch her at all times, even when she uses the bathroom, the group says.

 
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Mental Health in the (Remote) Workplace

With millions of employees working remotely, meeting tools such as Zoom have become our new remote workplace. Ben Aston, an online media entrepreneur, looks at how remote work can introduce unique mental health challenges, while also exacerbating those that existed before the pandemic. He recommends 10 steps to make sure employees are functioning at their best. The tips include being on the lookout for coworkers who appear exhausted or do not speak up during meetings; providing clarity around expectations and adequate support to accomplish tasks; reaffirming each employee’s value to the organization; and setting boundaries so employees do not “burn out” from overwork. Read more in his article from People Managing People.

 
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Roundtable to Focus on ‘Understanding Malpractice Insurance’

TBA’s member advantage partner The Bar Plan will offer a one-hour presentation on understanding malpractice insurance next Monday from 10 to 11 a.m. CST. Company president Karen McCarthy will discuss the differences in policy coverage available to lawyers seeking to protect their practice from malpractice claims. The roundtable is free but registration is required. Please register before 9 a.m. on the day of the event to receive the Zoom invitation in time. The Bar Plan offers professional liability, business, court bonds, workers' compensation, group term life and accidental death and dismemberment insurance.

 
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Services Pending for Memphis Attorney, City Planner

Tommy Pacello, an attorney and city planner who championed changes in streets and buildings to make Memphis a friendlier place for pedestrians, died Monday night at 43. He had previously announced his diagnosis of terminal pancreatic cancer. With a law degree and master's degree in city and regional planning from the University of Memphis, Pacello worked as an assistant city attorney in the division of planning and later served as president of the Memphis Medical District Collaborative. The Commercial Appeal has more on his work and legacy. Funeral arrangements are still pending.

 

TBA, Inns of Court Offer ‘Lawyers as Leaders’ Program

The Tennessee Bar Association and the Tennessee American Inns of Court are joining forces to bring together influential lawyers and leaders from across the state to examine the role of leadership in the legal profession. Speakers — including U.S. Sen. Lamar Alexander, U.S. 6th Circuit Court Judge Bernice B. Donald, former Tennessee Supreme Court Justice William C. Koch Jr. and TBA Chief Diversity Officer Mary Beard — will discuss the importance of lawyers leading by example to promote diversity, equity, inclusion and professionalism, as well as how lawyers can succeed in this mission. The program will run from 3 to 4:45 p.m. CST on Dec. 1 and offer 1.75 dual CLE hours. Please register before 1 p.m. CST on the day of the event to receive the Zoom invitation.

 
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Free TBA Health Insurance Quote

The Tennessee Bar Association health insurance program is open to Tennessee law firms of all sizes. Humana offers a variety of health plans to provide your law office with the right coverage for you and your staff. Get a quote today.

 
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.

ANTHONY RENTALS v. MARK B. SAGERS ET AL.

Court: TN Court of Appeals

Attorneys:

Mark B. Sagers, Ashland City, Tennessee, Pro se.

Wesley H. Southerland, Brentwood, Tennessee, for the appellee, Anthony Rentals.

Judge(s): CLEMENT

This appeal arises out of a dispute concerning an express, ingress and egress easement across the defendant’s property. The principal issue is whether the plaintiff abandoned the easement by failing to maintain the easement in a condition permitting it to be used for access and/or by acquiescing in the acts of others that reduced the utility of the easement. Following a bench trial, the court determined the defendant failed to prove abandonment by clear and convincing evidence. Having determined that the evidence does not preponderate against the findings by the trial court, we affirm.

anthonyrentals_111820.pdf

IN RE DYLLON M. ET AL.

Court: TN Court of Appeals

Attorneys:

Mary L. Ward, Knoxville, Tennessee, for the appellant, Cherish M.

Herbert H. Slatery, III, Attorney General and Reporter, and Kristen Kyle-Castelli, Assistant Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge(s): ARMSTRONG

In this termination of parental rights case, Appellant/Mother appeals the trial court’s termination of her parental rights to the minor children on the grounds of: (1) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1- 113(g)(2); (2) mental incompetence, Tenn. Code Ann. § 36-1-113(g)(8); and (3) failure to manifest an ability and willingness to parent the children, Tenn. Code Ann. § 36-1- 113(g)(14). Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. We reverse the trial court’s termination of Mother’s parental rights on the ground of substantial noncompliance with the requirements of the permanency plan. We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the children’s best interests.

dyllonm_111820.pdf

XINGKUI GUO v. JON DAVID ROGERS

Court: TN Court of Appeals

Attorneys:

Xingkui Guo, Nashville, Tennessee, appellant, pro se.

Jon David Rogers, Hendersonville, Tennessee, appellee, pro se.

Judge(s): ARMSTRONG

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

guox_111820.pdf

IN RE HASKEL S.

Court: TN Court of Appeals

Attorneys:

Michael J. Rocco, Sparta, Tennessee, for the appellant, Richard B.

Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant Attorney General, for the appellee, Tennessee Department of Children’s Services.

Judge(s): ARMSTRONG

In this termination of parental rights case, Appellant/Father appeals the trial court’s termination of his parental right to the minor child on the grounds of: (1) abandonment by an incarcerated parent by willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1- 113(g)(2); and (3) failure to manifest a willingness and ability to parent the child, Tenn. Code Ann. § 36-1-113(g)(14). Appellant also appeals the trial court’s finding that termination of his parental rights is in the child’s best interest. We reverse the trial court’s termination of Father’s parental rights on the grounds of abandonment by an incarcerated parent for failure to visit and support. We affirm the trial court’s termination of Father’s parental rights on all remaining grounds and on its finding that termination of Father’s parental rights is in the child’s best interest.

haskels_111820.pdf

ROCKY JOE HOUSTON v. PAT BROWN

Court: TN Court of Appeals

Attorneys:

Rocky Houston, Ten Mile, Tennessee, appellant, pro se.

Kerry Knox and Mitchell J. Ferguson, Murfreesboro, Tennessee, for the appellee, Pat Brown.

Judge(s): ARMSTRONG

Appellant appeals the trial court’s order setting aside his transfer of real property as a fraudulent conveyance. We do not reach the substantive issue because Appellant’s notice of appeal is untimely, thus depriving this Court of jurisdiction over the appeal. Dismissed.

houstonr_111820.pdf

FATMA ADEL SEKIK v. NEHAD ABDELNABI ET AL.

Court: TN Court of Appeals

Attorneys:

Matthew D. Barocas, Knoxville, Tennessee, for the appellants, Nahed Abdulnabi and Rewa Gharbawe.

Nehad Abdelnabi, Only, Tennessee, Pro Se.

Wanda G. Sobieski, Diane M. Messer, Caitlin Elledge, Zachary T. Powers, and Laura E. Wyrick, Knoxville, Tennessee, for the appellee, Fatma Adel Sekik.

Judge(s): STAFFORD

In this divorce appeal, Husband challenges the court’s failure to grant a continuance, the child support and alimony obligation imposed, and certain provisions of the parenting plan prohibiting contact with his children and revoking the parental rights set forth in Tennessee Code Annotated section 36-6-101(a)(3)(B). This proceeding also involved allegations of a conspiracy to defraud Wife of funds resulting from a sale of marital property in Gaza during the pendency of the divorce by Husband, his brother, and his brother’s wife; those nonspousal parties challenge the court’s jurisdiction over them and over the property in Gaza, as well as the court’s valuation of that property. They also challenge the court’s rulings that they engaged in a civil conspiracy and whether the judgment imposed against them is supported by the pleadings and the evidence. Upon our review of the issues raised, we discern no reversible error in the rulings of the court and accordingly affirm it in all respects.

sekidf_111820.pdf

TBF FINANCIAL LLC v. JONATHAN SIMMONS

Court: TN Court of Appeals

Attorneys:

David A. Lufkin, Sr., Knoxville, Tennessee, for the appellant, Jonathan Simmons.

Christopher W. Conner, J. Matthew Williams, and Kara Fitzpatrick, Maryville, Tennessee, for the appellee, TBF Financial, LLC.

Judge(s): ARMSTRONG

Appellant appeals the trial court’s dismissal of his Tennessee Rule of Civil Procedure 60.02 motion for relief from a judgment entered against him in the Knox County General Sessions Court. Appellant’s Rule 60.02 motion was filed approximately 8 years after the judgment was entered, and the trial court held that it lacked jurisdiction based on the expiration of the 10-day time period set out in Tennessee Code Annotated Section 16-15- 727(b). Appellant’s motion was premised on his contention that he was never served with process in the general sessions court and, as such, the judgment was void ab initio. We conclude that the 10-day statutory time period does not preclude the trial court’s jurisdiction to address Rule 60.02 motions based on a void judgment. However, we do not reach the ultimate question of whether Appellant is entitled to such relief because there is a dispute of fact regarding whether proper service was achieved. This dispute must be resolved by the trial court in order to determine whether Rule 60.02(3) relief is warranted. Vacated and remanded.

tbffinancial_111820.pdf

 

PHILEMON ALEXANDER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Philemon Alexander.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie R. Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

This case presents an appeal as of right from the post-conviction court’s denial of relief. The Petitioner is serving an eight-year sentence for a jury conviction of theft of property valued at $1,000 or more but less than $10,000. The Petitioner asserts that Counsel’s failure to properly investigate or prepare for trial constitutes the ineffective assistance of counsel. The Petitioner, however, failed to provide clear and convincing proof at the post-conviction hearing to support his allegations of ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of relief.

alexanderp_111820.pdf

STATE OF TENNESSEE v. KENNETH LAMAR BUGG

Court: TN Court of Criminal Appeals

Attorneys:

Mattea L. Rollin, Elkton, Tennessee, for the appellant, Kenneth Lamar Bugg.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Brent A. Cooper, District Attorney General; and Jessie Chandler, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Defendant, Kenneth Lamar Bugg, appeals the order of the Giles County Circuit Court revoking his probation and ordering him to serve his sentence in confinement. Defendant argues that the trial court erred by considering evidence of “non-adjudicated charges” that were pending against him, as a basis to revoke his probation. He further contends that the trial court’s decision to fully revoke his probation was “too great a punishment for a first violation of probation.” Following a thorough review, we affirm the judgment of the trial court.

buggk_111820.pdf

STATE OF TENNESSEE v. JEREMY LEE CARTER

Court: TN Court of Criminal Appeals

Attorneys:

Brennan M. Wingerter (on appeal), Assistant Public Defender – Appellate Division; Comer L. Donnell, District Public Defender; and Thomas Bilbrey (at trial), Assistant Public Defender, for the appellant, Jeremy Lee Carter.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Javin Cripps, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The Defendant, Jeremy Lee Carter, pleaded guilty to evading arrest, reckless endangerment, and promotion of methamphetamine manufacture; and he received an effective sentence of eight years on probation. A revocation warrant was issued, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the trial court erred in ordering him to serve his sentence in confinement. Following our review, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

carterj_111820.pdf

STATE OF TENNESSEE v. AUDREY DOWNS

Court: TN Court of Criminal Appeals

Attorneys:

Monica A. Timmerman, Bartlett, Tennessee, for the appellant, Audrey Downs.

Herbert H. Slatery III, Attorney General and Reporter; Andrew Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The Petitioner, Audrey Downs, entered “best interest” pleas to felony murder and aggravated rape pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and received concurrent sentences of life imprisonment without the possibility of parole and twentyfive years. In 2002, the Petitioner successfully petitioned for DNA testing of a condom collected from the scene where the victim’s body was discovered, and the results excluded the Petitioner as a contributor to the DNA. Because the State subsequently introduced evidence that the condom was unrelated to the crime, the Petitioner was denied permission to reopen his post-conviction petition. The Petitioner sought further testing of the condom to determine whether the victim’s DNA could be recovered, in an attempt to link it to the crime. The trial court summarily denied further testing, and this court remanded for the trial court to conduct the required analysis of the statutory factors. State v. Audrey Downs, No. W2018-00391-CCA-R3-CD, 2018 WL 6650597, at *2 (Tenn. Crim. App. Dec. 18, 2018), no perm. app. filed. On remand, the petition was again summarily dismissed, and the Petitioner appeals. We conclude that the petition did not allege a prima facie case for DNA testing under the statute, and we accordingly affirm the dismissal.

downsa_111820.pdf

TERRANCE MILAM v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Terrance Milam.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Sarah Michelle Poe, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

The Petitioner, Terrance Milam, entered a best interest plea to two counts of rape of a child, involving two separate victims, and the trial court sentenced him to serve forty years, at 100%. The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his counsel failed to inform him of his right to appeal and to request that the trial court appoint appellate counsel. Following a hearing, the post-conviction court dismissed his petition, and the Petitioner timely appealed. After review, we reverse the post-conviction court’s judgment and remand the case for the appointment of counsel, entry of a certified question of law, and grant of a delayed appeal.

milamt_111820.pdf

 

NOSOUD ALEMARAH v. GENERAL MOTORS, LLC

Head Comment: The court delivered a PER CURIAM opinion. KETHLEDGE delivered a separate concurring opinion.

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Raymond Guzall III, RAYMOND GUZALL III, P.C., Farmington Hills, Michigan, for Appellant.

ON BRIEF: Martin C. Brook, Mami Kato, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PLLC, Birmingham, Michigan, for Appellee.

Judge(s): NORRIS, SUTTON, and KETHLEDGE, Circuit Judges

Court Appealed: United States District Court for the Eastern District of Michigan at Detroit

PER CURIAM. Nosoud Alemarah sued her former employer, General Motors, in both state and federal court, claiming employment discrimination based upon identical factual allegations. The state suit asserted state claims, the federal suit, federal ones. The state court dismissed that case after the parties settled those claims; the federal district court granted summary judgment in favor of GM. Alemarah now challenges the court’s grant of summary judgment, its order denying her motion to recuse the district judge, and an order awarding costs to GM. We affirm, albeit with some concerns as to the recusal motion.

alemarahn_111820.pdf

UNITED STATES OF AMERICA v. DESHAUN TISDALE (19-1901); DANGELO DAVIS (19-1903); WINSTON HILL (19-1944)

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: James W. Amberg, AMBERG & AMBERG, PLLC, Royal Oak, Michigan, for Appellant in 19-1901. John W. Brusstar, Grosse Pointe, Michigan, for Appellant in 19-1903. Christian J. Grostic, Cleveland, Ohio, for Appellant in 19-1944.

ARGUED: John B. Meixner, Jr., UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: James W. Amberg, AMBERG & AMBERG, PLLC, Royal Oak, Michigan, for Appellant in 19-1901. John W. Brusstar, Grosse Pointe, Michigan, for Appellant in 19-1903. Christian J. Grostic, Cleveland, Ohio, for Appellant in 19-1944.

ON BRIEF: John B. Meixner, Jr., UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

Judge(s): SUTTON, THAPAR, and READLER, Circuit Judges

Court Appealed: United States District Court for the Eastern District of Michigan at Detroit

SUTTON, Circuit Judge. Deshaun Tisdale, Dangelo Davis, and Winston Hill were active members of the Playboy Gangster Crips, a street gang in Detroit that allegedly sold drugs, robbed homes, and committed carjackings. Federal prosecutors indicted them, along with eleven other gang members, in 2017. A jury convicted Tisdale, Davis, and Hill of a variety of racketeering-related offenses. We affirm.

tisdaled_111820.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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