TBA Today - Thursday, November 19, 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, November 19, 2020
Today's News
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TBA Launches Survey of Tennessee Lawyers

The Tennessee Bar Association this week is launching a survey of Tennessee lawyers to learn your thoughts on current legal issues and find out how we can better serve attorneys across the state. This year we have also added questions related to diversity, equity and inclusion, as well as attorney well-being. Your participation in this survey will also help the TBA meet its objectives of informing, educating, promoting and supporting the Tennessee legal community. This video from TBA President Michelle Greenway Sellers tells more about why it is important for you to take part. Watch for an email from TBASurvey@tnbar.org with details on how to access the survey.

 
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Fund Established to Honor Legacy of Judge Pam Reeves

Friends of the late Chief U.S. District Judge for the Eastern District of Tennessee Pamela L. Reeves have created a way for the public to honor her legacy and her passion for developing young lawyers as future leaders. A fund has been established to honor Reeves at the University of Tennessee College of Law Leadership Institute. It will support the Institute’s ongoing mission of helping students identify and develop their leadership skills, professional values and career path. To donate to the fund, make checks payable to the UT College of Law with a note that it is for the Pam Reeves Memorial Fund and mail it to Ellen Cole, UT College of Law, 1505 West Cumberland Avenue, Suite 248, Knoxville, Tennessee, 37996. Cole can be reached via email or at 615-974-6704.

Davidson Criminal Courts Seek Comments on Proposed E-Filing

The Davidson County Criminal Courts are seeking comments from the public and attorneys on proposed rules to address e-filing. Comments may be submitted electronically to the Criminal Court Clerk’s Office by emailing cccemailfiling@jis.nashville.org with “E-Filing Rules Comments” in the subject line. Written comments may be mailed to the attention of Julius Sloss, Office of the Davidson County Criminal Court Clerk, 408 2nd Ave. N., Ste. 2120, Nashville, 37201. The deadline to submit comments is Dec. 10.    

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Homeless Court Offers Second Chances and Valuable Resources to Clients

According to its facilitators, Nashville-based Homeless Court is starting to draw the attention of local public defenders and district attorneys. The pilot program was launched by Baker Donelson in September and is presided over by Nashville Judge Lynda Jones. Baker Donelson associate Hannah Cole says the court’s goal is two-fold. It is “to remove legal barriers to housing and employment for people who are homeless and then to connect our participants with service providers in town,” she said. The Administrative Office of the Courts takes a closer look at the program and profiles the unique situations of some of its clients. Read more on the AOC’s website.

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Execution Delayed for Only Female on Federal Death Row

A federal judge today delayed the execution of federal death row inmate Lisa Montgomery after her two Tennessee-based public defenders contracted the COVID-19 virus, the Commercial Appeal reports. Assistant federal public defenders, Kelley Henry and Amy Harwell, had asked for an injunction to postpone the execution until they could prepare a thorough clemency appeal. Montgomery was scheduled to die by lethal injection on Dec. 8, the first female to be put to death by the U.S. government in more than six decades. Her execution has been delayed until at least Dec. 31 under an order filed today by U.S. District Judge Randolph D. Moss. A new date has not yet been set. If Henry and Harwell are still too unwell to finalize the clemency petition by Dec. 24, they are ordered to add other attorneys or ask the court to appoint additional qualified counsel to the case.

 
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Rep. Mike Carter Diagnosed With Pancreatic Cancer

Rep. Mike Carter, R-Ooltewah, today announced that he has been diagnosed with pancreatic cancer, the Tennessean reports. Carter contracted COVID-19 before the legislature’s special session in August and was placed on oxygen in the intensive care unit at Chattanooga’s Erlanger hospital. After experiencing “lingering symptoms,” Carter visited Vanderbilt, where doctors told him they believe many of those symptoms have been the result of the cancer. "My doctors tell me I should be able to do everything I'd been doing before and I intend to continue serving in the legislature," Carter said in his statement. He has begun treatment at Vanderbilt.

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Senate GOP Leadership Remains Unchanged

Tennessee’s Senate Republican Caucus gathered today in Nashville to vote on top leadership roles, the Tennessee Journal reports. Lt. Gov. Randy McNally was renominated to a third term, Sen. Jack Johnson, R- Franklin, will continue on as Majority Leader and Sen. Ken Yager, R-Kingston, will remain Republican Caucus Chairman. The first session of the 112th General Assembly will open on Jan. 12. TNJ has a full list of those elected to Senate Republican Caucus leadership.

 
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Tarpley Named ALFA International’s Attorney of the Year

John Tarpley, shareholder at Lewis Thomason’s Nashville office, is being honored with this year’s ALFA International Nathan Fishbach Attorney of the Year award. ALFA is a global legal network consisting of 150 independent law firms and its Attorney of the Year award is given annually to a person who exemplifies the best attributes of an attorney. According to ALFA’s website, Tarpley was recognized this year for his “service and dedication” that has “led the association through the challenges of 2020 by creating an inclusive framework for the organization and its member firms moving forward.” Tarpley is a past president of the TBA and currently represents the TBA in the American Bar Association House of Delegates. He handles complex litigation in the areas of transportation, tort, product liability and a wide range of insurance-related matters for Lewis Thomason.

 
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Criminal Law Forum Coming in December

The TBA’s Criminal Law Forum 2020 will take place virtually on Dec. 11 from 10 a.m. to 2:30 via Zoom Webinar. Attendees will hear presentations from Kirsten Shields of Legility and Christopher Slobogin of Vanderbilt University School of Law on topics designed to enrich your practice and keep you at the forefront of the latest developments in the criminal law field. And remember: all 2020 CLE hours can be taken online and TBA members get discounted pricing on all CLE programs.

 
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Already Using UPS? Save by Switching to TBA

Let us help you switch your office UPS account to TBA’s UPS member advantage account and save up to 45% on shipments. Contact Membership Director Mindy Thomas for account transfer details and to compare service rates. Savings include next day air, international, ground and express. Visit UPS's TBA page for specific services and discounts.

 
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.

STATE OF TENNESSEE EX REL. RACHEL BETH GRAY V. ALLAN VINCENT DAUGHERTY, JR.

Court: TN Court of Appeals

Attorneys:

Drew Justice, Murfreesboro, Tennessee, for the appellant, Allan Vincent Daugherty.

Herbert H. Slattery, III, Attorney General and Reporter; Jordan K. Crews, Assistant Attorney General, for the appellee, State of Tennessee Civil.

Judge(s): GOLDIN

This is an appeal of a judgment entered against Father for child support arrearage. The State of Tennessee, on behalf of Mother, sought a modification of the judgment against Father under Rule 60.02 of the Tennessee Rules of Civil Procedure due to an alleged erroneous calculation of child support owed by Father. The trial court granted the State’s motion, increasing the amount of the arrearage judgment owed by Father. For the reasons stated herein, we reverse the trial court’s order granting the State relief under Rule 60.02.

grayr_111920.pdf

MELISSA JANELLE JONES v. CHARLES JASON JONES

Court: TN Court of Appeals

Attorneys:

Charles Jason Jones, Palos Verdes Peninsula, California, pro se appellant.

Christopher Beauchamp, Lebanon, Tennessee, for the appellee, Melissa Janelle Jones.

Judge(s): MCBRAYER

A husband sought relief from a final decree of divorce nine years after its entry. He argued that the decree was void because the trial court lacked subject matter and personal jurisdiction. The trial court denied the husband’s motion. We affirm.

jonesm_111920.pdf

RONALD L. JONES v. LOUISE HELMS ET AL.

Court: TN Court of Appeals

Attorneys:

Louise A. Helms, Oklahoma City, Oklahoma, Pro se.

Donnie Wayne Knott, Milan, Tennessee, for the appellee, Ronald L. Jones.

Judge(s): STAFFORD

In this case, a sister contests the sale of her deceased brother’s interest in real estate they inherited from their mother to satisfy an outstanding judgment lien against the brother. Because the sister waives her right to appellate review of most of her arguments and we discern no error in the circuit court’s exercise of subject matter jurisdiction, we affirm the circuit court.

jonesr_111920.pdf

IN RE ZANE M.O.

Court: TN Court of Appeals

Attorneys:

Linda G., Knoxville, Tennessee, pro se.

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

Judge(s): MCCLARTY

This action involves a maternal grandmother’s objection to the denial of her petition for custody of her minor grandchild and his adoption by his foster parents. We affirm.

zanemo_111920.pdf

 

ANGELA BREWER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Jeremy T. Armstrong, Covington, Tennessee, for the appellant, Angela Brewer.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Mark E. Davidson, District Attorney General; and Erik Haas, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

A Tipton County jury convicted Petitioner, Angela Brewer, of first degree premeditated murder, and the trial court sentenced Petitioner to life. Petitioner appealed, and this court affirmed her conviction and sentence. Petitioner filed a pro se petition for postconviction relief, and after a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that the post-conviction court erred in denying relief on her claim that she received ineffective assistance of counsel based on trial counsel’s failure to consult with Petitioner regarding the evidence and to secure a firearms expert to testify for the defense. Following a thorough review, we affirm the judgment of the post-conviction court.

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GEORGE CAMPBELL, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

George Campbell, Jr., Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior 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 was convicted of felony murder and aggravated assault for which he received an effective sentence of life in prison. Since his conviction in 1994, the petitioner has filed numerous post-judgment motions seeking relief. The petitioner now appeals from the denial of his most recent motion seeking relief pursuant to Tennessee Rules of Civil Procedure, Rule 60.02. Upon our review of the record and the applicable law, we affirm the decision of the trial court.

campbellg_111920.pdf

STATE OF TENNESSEE v. CHRISTOPHER W. GADSDEN

Court: TN Court of Criminal Appeals

Attorneys:

Martesha L. Johnson, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal); and Will Allensworth and Jared Mollenkoff, Assistant Public Defenders (at trial), for the appellant, Christopher W. Gadsden.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Chandler Harris and J. Wesley King, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Defendant, Christopher W. Gadsden, was indicted by the Davidson County Grand Jury for first degree premeditated murder, first degree felony murder, and theft of property valued between $1,000 and $10,000. Following a jury trial, Defendant was convicted of second degree murder and theft of property valued between $1,000 and $10,000. Following a sentencing hearing, the trial court imposed a total effective sentence of 24 years in the Tennessee Department of Correction with 100 percent release eligibility. In this appeal as of right, Defendant contends that: 1) the evidence was insufficient to support his conviction for second degree murder; 2) the trial court erred by admitting certain autopsy photographs into evidence; 3) the trial court erred by excluding evidence of a prior bad act by the victim; and 4) his sentence is excessive. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

gadsdenc_111920.pdf

STATE OF TENNESSEE v. DEMONICA GORE

Court: TN Court of Criminal Appeals

Attorneys:

Eric Mogy, Memphis, Tennessee, for the Defendant-Appellant, Demonica A. Gore.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant Attorney General; Amy Weirich, District Attorney General; and Jamie Kidd, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

The Defendant-Appellant, Demonica Gore, was convicted by a Shelby County jury of aggravated robbery and received a sentence of twelve years’ imprisonment. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in sustaining the State’s objection to defense counsel’s question during voir dire concerning the juror’s views on police confessions; (2) whether the evidence was sufficient to sustain the conviction; and (3) whether the trial court erred in imposing the maximum sentence of twelve-years’ imprisonment. Upon our review, we affirm the judgment of the trial court.

gored_111920.pdf

STATE OF TENNESSEE v. JUSTIN W. WALKINGTON

Court: TN Court of Criminal Appeals

Attorneys:

Brandon E. White (on appeal), Columbia, Tennessee; and Hershell Koger (at trial), Assistant District Public Defender, for the appellant, Justin W. Walkington.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Brent A. Cooper, District Attorney General; and Emily Crafton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Justin W. Walkington, appeals his Giles County Circuit Court jury conviction of child abuse of a child under the age of eight, arguing that the evidence was insufficient to support his conviction, that the trial court erred by instructing the jury that child abuse was a lesser included offense of aggravated sexual battery, that the trial court’s child abuse instruction actually charged the elements of child neglect, and that the trial court erred by denying the defendant any form of alternative sentencing. We hold that the trial court erred by instructing the jury that child abuse was a lesser included offense in this case because the evidence was legally insufficient to support that charge. Additionally, the trial court’s instruction on the offense of child abuse erroneously included the elements of child neglect, which charge was also unsupported by the evidence. Because the evidence was insufficient to support a conviction of either child abuse or child neglect but was sufficient to support a conviction of simple assault by offensive touching, we reverse and vacate the defendant’s conviction of child abuse and remand the case to the trial court for a sentencing hearing on the offense of Class B misdemeanor assault and the entry of an amended judgment reflecting the new conviction offense and sentence.

walkingtonj_111920.pdf

STATE OF TENNESSEE v. ANTHONY DEWIGHT WASHINGTON

Court: TN Court of Criminal Appeals

Attorneys:

Anthony Dewight Washington, Pro Se, Hartsville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Defendant, Anthony Dewight Washington, appeals as of right from the trial court’s summary dismissal of his Tennessee Rule of Criminal Procedure 36 motion to correct a clerical error in the judgment of his conviction for the offense of possession, in a drugfree zone, of 0.5 gram or more of cocaine for sale. After review of the appellate record and the briefs filed by the parties, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

washingtona_111920.pdf

 

RICHARD E. DAVIS v. HARTFORD LIFE & ACCIDENT INSURANCE COMPANY

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Michael D. Grabhorn, Andrew M. Grabhorn, GRABHORN LAW | INSURED RIGHTS®, Louisville, Kentucky, for Appellant.

ON BRIEF: William B. Wahlheim, Jr., John C. Neiman, MAYNARD COOPER & GALE, P.C., Birmingham, Alabama, for Appellee.

Judge(s): COLE, Chief Judge; DONALD and READLER, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Western District of Kentucky at Louisville

CHAD A. READLER, Circuit Judge. Hartford Life & Accident Insurance Company provided disability benefits to Richard E. Davis under an insurance policy governed by the Employee Retirement Income Security Act of 1974 (ERISA). After Hartford Life determined that Davis no longer qualified as disabled under the policy, it terminated his benefits. Davis filed suit, bringing claims for breach of contract, breach of fiduciary duty, and disgorgement under 29 U.S.C. § 1132(a). The district court resolved all three claims in Hartford Life’s favor. We now affirm.

davisr_111920.pdf

WALTER MELARA MARTINEZ v. CHRISTOPHER LAROSE, et al.

Head Comment: The panel issued an order denying the petition for rehearing en banc. THAPAR delivered a separate opinion concurring in the denial of the petition for rehearing en banc. MOORE delivered a separate opinion dissenting from the denial of the petition for rehearing en banc, in which STRANCH and DONALD joined.

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON PETITION FOR REHEARING EN BANC: Andrew A. Lyons-Berg, Paul W. Hughes, MCDERMOTT WILL & EMERY, LLP, Washington, D.C., Gino J. Scarselli, Richmond Heights, Ohio, Brian J. Hoffman, BRIAN J. HOFFMAN, LLC, Wooster, Ohio, Kenneth D. Myers, Cleveland, Ohio, for Appellant.

ON RESPONSE: Brian C. Ward, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Judge(s): SILER, GIBBONS, and THAPAR, Circuit Judges

Court Appealed: On Petition for Rehearing En Banc United States District Court for the Northern District of Ohio at Youngstown

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Gibbons would grant rehearing for the reasons stated in her dissent.

martinezw_111920.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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