TBA Today - Monday, January 11, 2021 - 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
Monday, January 11, 2021
Today's News

Memphis Police Officer Accused of Kidnapping, Killing Local Man

Memphis Police Department officer Patric Ferguson is accused of using a squad car to carry out an on-duty kidnapping and killing, the Commercial Appeal reports. The police department released a statement Sunday morning that Ferguson allegedly had kidnapped 30-year-old Robert Howard from a home in Frayser, forced him into a squad car, and drove him to another location where he shot and killed him. A second man, 28-year-old Joshua Rogers, allegedly helped Ferguson move the victim’s body after he was killed. Ferguson had worked for MPD since October 2018. He is facing charges of first-degree murder, especially aggravated kidnapping, abuse of a corpse and fabricating and tampering with evidence.

 
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Judge McGinley to Retire in October

Circuit Court Judge C. Creed McGinley of Savannah announced last week that he is retiring effective Oct. 31, the Courier reports. In a letter to Gov. Bill Lee, McGinley said he is giving notice “well in advance” so the selection process for his replacement can begin and the post be filled by Nov. 1. “The pandemic has created backlog and it is imperative that there be no delay in my successor assuming their duties,” McGinley wrote. McGinley has served as 24th Judicial District circuit court judge since January 1988. He says he will pursue being named a senior judge following his retirement.

AG Seeks Opioid Progress Report, Settles Data Breach Investigation

Tennessee Attorney General Herbert H. Slatery III announced two actions today. First, Slatery said he has joined a coalition of 48 attorneys general in pushing federal regulators to examine recent progress in the fight against opioid abuse. The group is asking for a progress report on recent steps taken by the U.S. Food and Drug Administration to combat the opioid crisis, given new authorities Congress granted the agency in 2018. In a second announcement, Slatery said his office has entered into a national settlement with Sabre Corporation that resolves a 2017 data breach of the company’s hotel booking system. The breach exposed the data of approximately 1.3 million credit cards. The settlement requires a payment of $2.4 million. Tennessee will receive $61,909.08 as well as injunctive relief.

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Civil Rights Museum, Just City Host Criminal Justice Event

The National Civil Rights Museum and Memphis nonprofit Just City hosted a virtual symposium over the weekend to highlight criminal justice reform work around the country, Local Memphis reports. "Journey to Justice" featured panel discussions and a keynote address by attorney and clemency champion Brittany K. Barnett. In related news, Just City recently received a $200,000 grant from the National Football League’s Inspire Change social justice initiative. It is one of 13 new grantees and says it will use the funds to place independent observers in Shelby County Criminal Court trials; expunge records; and provide bail for those booked into Shelby County jails. The Commercial Appeal has more on that story.

Biden Names Lawyers to White House Counsel Office

President-elect Joe Biden named more than 20 lawyers to his White House counsel’s office today, Bloomberg Law reports. The group includes Paige Herwig, who was counsel to former Attorney General Loretta Lynch; Janet Kim, former House Committee on Oversight and Reform lawyer; Lauren Moore, who was Vice President-elect Kamala Harris’s lawyer on the Senate Judiciary Committee; Larry Schwartztol and Caroline McKay, who worked at an organization created to limit presidential power under President Trump; Tona Boyd, who worked for Senate Judiciary Committee member Cory Booker; and Maury Riggan and Michael Posada, previously with WilmerHale. The group will work under Dana Remus, a former White House ethics lawyer who specialized in legal ethics at the University of North Carolina before being named Biden’s White House counsel. Funmi Olorunnipa Badejo, who will be associate counsel, served as ethics counsel for the Obama administration and currently works for Democrats on the House committee with oversight over the government’s coronavirus response. Samiyyah R. Ali, a 2016 graduate of Vanderbilt Law School, was named associate deputy counsel.

 
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Senate to Continue Blocking Public Access to Committees

The Tennessee Senate will continue to bar public access to committee meetings during the upcoming legislative session, the Tennessee Journal reports. According to guidelines shared with members, the restrictions will mirror the COVID-19 mitigation steps taken by the upper chamber last summer. Testimony in committee meetings by non-members will be conducted remotely. Reporters may attend hearings but only one pool reporter will be allowed on the Senate floor. By contrast, the House is expected to continue to allow access to committee meetings for lobbyists and other members of the public.

 

Sign Up to Volunteer for Nashville Legal Clinic

The link to volunteer for an upcoming legal clinic to help individuals and businesses affected by the Christmas day bombing in downtown Nashville was wrong in Friday’s issue of TBA Today. The correct link is here. The free clinic —a joint project of the Tennessee Bar Association, Nashville Bar Association, Tennessee Alliance for Legal Services, and Legal Aid Society of Middle Tennessee & the Cumberlands — will be held remotely by phone on Friday. Each appointment will last 30 minutes. Those needing assistance can schedule an appointment starting tomorrow by calling 615-953-4961.

 
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LAS Plans 4 Phone Clinics This Week

Legal Aid Society of Middle Tennessee & the Cumberlands will hold four phone clinics this week for members of the public with questions about housing and renters’ rights, bankruptcy, medical bills, debt collection, domestic violence, SNAP benefits and unemployment benefits. Clinics will take place on Tuesday from 4:30 to 6 p.m., Wednesday from 11 a.m. to 1 p.m., Thursday from 3 to 4:30 p.m. and Saturday from 8:30 to 10:30 a.m. All times central. LAS is looking for attorneys to help answer questions. To volunteer, contact Andrae Crismon or Kendra Cheek or call 615-780-7131.

 
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Former Grainger County Judge Dies at 77

Joseph Wayne Wolfenbarger of Bean Station died Jan. 7 at 77. A graduate of the University of Tennessee College of Law, Wolfenbarger served for 32 years as the Grainger County general sessions and juvenile court judge. Due to the ongoing pandemic, funeral services will not be held. Wolfenbarger will lie in repose at Smith-Reagan Funeral Home in Rutledge today from noon to 4:30 p.m. and tomorrow from 8 a.m. to noon. A graveside service will be held tomorrow at 2 p.m. at Grainger Memorial Gardens. All times eastern.

 

Community Legal Center Seeks Associate Director

The Memphis-based Community Legal Center is seeking an associate executive director to manage daily operations of the center, oversee financial functions, perform human resources tasks and coordinate the process for developing s strategic plan and annual business plan. A minimum of five years of professional experience, including management is required. A law degree is strongly preferred. View the full job description. Interested applicants should submit a cover letter and resume to annem@clcmemphis.org.

 
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LawTech 2021 Offers 6 Virtual Sessions in February

This year’s LawTech CLE will be offered virtually over three days in February with sessions at 11 a.m. and 1 p.m. CST each day. On Feb. 5, the morning session will feature a judicial panel of criminal court judges discussing how technology is being used in their courtrooms, while the afternoon session will review the pros and cons of facial recognition technology. On Feb. 12, the morning session will focus on technology used in elections while the afternoon session will feature the not-to-miss Bill & Phil Show. The series wraps up on Feb. 19 with a morning session featuring civil court judges discussing how technology is being used in their courtrooms, and an afternoon session on using technology in remote depositions and trials.

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Hendersonville Attorney Wins CLE Blast Grand Prize

Hendersonville attorney Mark Colter has been selected as the 2020 Year End CLE Blast Grand Prize winner! The month-long CLE program offered programming throughout December with weekly prize drawings thanks to our presenting sponsor Clio. All attorneys who purchased a CLE program from the TBA in December or signed up online to be entered in the drawing were considered for the month-end grand prize drawing. Congratulations to all who won and to all who were able to get the last minute CLE they needed!

 
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TBA Members Save at Office Depot

Save up to 60% on office supplies through the TBA's Office Depot benefit program! The TBA has partnered with this top national office supply company to offer discounted pricing for law firms large and small.

 
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.

Tennessee Supreme Court DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court

Week of January 4, 2021 - January 8, 2021

cert_011121.pdf

 

HELEN BUTLER v. KBK OUTDOOR ADVERTISING ET AL.

Head Comment: CORRECTION: Page 1, added Kimberly Macdonald as appellant's attorney.

Court: TN Court of Appeals

Attorneys:

Donald Capparella, Michael B. Bressman and Kimberly Macdonald, Nashville, Tennessee, for the appellant, Helen Butler.

W. Timothy Harvey and Rebecca J. Garman, Clarksville, Tennessee, for the appellees, KBK Outdoor Advertising, Sue Kettle, and George R. Kettle.

Judge(s): MCBRAYER

A widow sued to recover the value of her late husband’s interest in a general partnership. She argued that, in compensating a deceased partner, the assets of the partnership had to be valued at fair market value. On a motion for summary judgment, the trial court concluded that the partnership agreement provided that, upon a partner’s death, partnership assets would be valued at book value. After our review of the partnership agreement, we reverse.

butlerh_COR_011120.pdf

WILLIAM L. KELLERMAN ET AL. V. GERALD S. GABRIEL ET AL.

Head Comment: CORRECTION: Page 1, The attorney's name has been corrected from "Cowen" to "Cowan."

Court: TN Court of Appeals

Attorneys:

Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, Gerald S. Gabriel.

Nathan S. Luna, Murfreesboro, Tennessee, for the appellees, William Kellerman and Peggy Kellerman.

Matthew D. Cowan, Woodbury, Tennessee, for the appellees, Donald Kellerman and Diana Kellerman.

Margie Rigsby Miller, McMinnville, Tennessee, for the appellees, Jesse W. Ferrell and Connie Jean Ferrell.

Shaun Hill and Edyta Hill, Woodbury, Tennessee, Pro se.

Judge(s): CLEMENT

This appeal arises out of a boundary dispute. Following a bench trial, the court determined that the plaintiffs established the boundary line based on an oral boundary agreement between the parties’ predecessors in interest. On appeal, the defendant takes issue with the trial court’s finding that the parties to the oral boundary agreement were uncertain of the location of the original boundary at the time they entered into the agreement. The defendant also takes issue with the trial court’s determination that the plaintiffs’ deed was not void for champerty based on the court’s conclusion that the remnants of the fence the defendant relied on to establish the property line met none of the requirements of adverse possession. After reviewing the evidence presented at the trial, we affirm the trial court’s decision.

kellermanw_COR_011121.pdf

 

IN RE: TENNESSEE BONDING COMPANY

Head Comment: CORRECTION: In the first paragraph the sentence that reads: “In this extraordinary appeal, Appellant claims the trial court erred by denying Appellant a hearing” changed to: “On appeal, Appellant claims that the trial court erred by denying Appellant a hearing.” On page 4, in the second paragraph the sentence that reads: “This court granted the application by order entered on May 18, 2020” changed to: “By order entered on May 18, 2020, this court determined that Appellant had a right to appeal under Tennessee Rule of Appellate Procedure 3 and treated the application as a notice of appeal.”

Court: TN Court of Criminal Appeals

Attorneys:

Cayley J. Turrin, Brentwood, Tennessee, for the appellant, Tennessee Bonding Company.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Kim R. Helper, District Attorney General; and Jennifer M. Mason, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Tennessee Bonding Company, Appellant, surrendered the defendant, Larry Patton, to the Lewis County Sheriff’s Department but failed to notify the trial court of the surrender. Five weeks later, the trial court sua sponte entered an order exonerating Appellant on the bond but requiring Appellant to return “any and all premiums previously paid” and discharging the defendant from any remaining obligation for payment on the bond. Appellant filed a motion to reconsider asking for a hearing, which was summarily denied by the court. On appeal, Appellant claims that the trial court erred by denying Appellant a hearing. After review of the record and applicable law, we affirm the judgment of the trial court.

tnbondingco_COR_01121.pdf

 

UNITED STATES OF AMERICA v. WILLIAM B. MILLIRON

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant.

ON BRIEF: Ashley A. Futrell, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.

Judge(s): GUY, McKEAGUE, and LARSEN, Circuit Judges

Court Appealed: United States District Court for the Northern District of Ohio at Toledo

RALPH B. GUY, JR., Circuit Judge. Defendant William B. Milliron crashed his mobile methamphetamine lab into a building after he led the U.S. Marshals and local police on a high-speed chase and threw Molotov cocktails at the pursuing vehicles. He pleaded guilty to several charges in exchange for the dismissal of the remaining charges. The district court sentenced Milliron to 110 months in prison (14 months above the Sentencing Guideline range). On appeal, Milliron attacks his plea agreement and challenges his sentence as procedurally and substantively unreasonable. We AFFIRM.

millironw_01121.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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