TBA Today - Wednesday, January 13, 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
Wednesday, January 13, 2021
Today's News
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State Lawmakers Open Session with Leadership Elections, Committee Appointments

Tennessee lawmakers officially started the new legislative session Tuesday, with members of the state Senate and House of Representatives re-electing Senate Speaker Randy McNally and House Speaker Cameron Sexton, respectively, WPLN reports. Today, lawmakers elected three constitutional officers: the secretary of state, treasurer and comptroller. Democratic leaders from both chambers called for a no-confidence vote on Secretary of State Tre Hargett during the proceedings but he was reappointed, according to the Nashville Post. David Lillard was re-elected treasurer without opposition. The comptroller election was the only position seeing a change with retiring Comptroller Justin Wilson being replaced by his top deputy Jason Mumpower.

Senate Speaker McNally, R-Oak Ridge, also named new chairs of two committees. Sen. Brian Kelsey, R-Germantown, will take over as chair of the Education Committee following the retirement of Dolores Gresham. Sen. Richard Briggs, R-Knoxville, will take over as chair of the State and Local Government Committee following the electoral defeat of Steve Dickerson. Committee assignments have yet to be made in the House, but draft rules signal a change in the overall makeup of the committees, the Tennessee Journal reports. Speaker Sexton is expected to once again split the Judiciary Committee into two standing panels: Civil Justice and Criminal Justice. He also reportedly plans to turn the Education panel into separate Education Administration and Education Instruction committees. Finally, he is expected to sunset the Consumer and Human Resources Committee.

 
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Bradley Launches Legal Clinic for Black-Owned Small Businesses, Nonprofits

Bradley Arant Boult Cummings has launched a new legal clinic in Nashville designed to assist black-owned small businesses and nonprofits. The first clinic will take place virtually next Monday on Martin Luther King Jr. Day. Clients will be assisted by appointment only from noon to 1 p.m. CST. Subsequent clinics will be held on the third Thursday of each month. The clinic, a joint project with the Arts & Business Council of Greater Nashville and its Volunteer Lawyers & Professionals for the Arts (VLPA) Program, will provide accessible and affordable business-oriented legal services, including corporate governance, review of contracts and guidance navigating local ordinances and state regulations. In announcing the initiative, the firm’s managing partner Jonathan M. Skeeters said the clinic is an “opportunity for Bradley to join the cause for racial equity and to make a lasting impact in the Nashville community.”

ABA Releases Ethics Opinion on Responding to Online Reviews

Lawyers are frequent targets of criticism and sometimes that criticism takes place in online reviews, but lawyers must be careful not to violate the duty of confidentiality when responding to such reviews, the ABA’s Standing Committee on Ethics and Professional Responsibility said in an ethics opinion issued today. The committee advises the best response is often no response at all. Formal Opinion 496 identifies the main ethical concern of any response to a negative online review, states that a negative online review does not constitute a “controversy between the lawyer and the client” and identifies best practices when confronted with negative online reviews. One possible response? “Professional obligations do not allow me to respond as I would wish.” Read more about the opinion in the ABA Journal.

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FordHarrison Names New Memphis Managing Partner

FordHarrison LLP recently announced that Russell W. Jackson has been named managing partner of the firm’s Memphis office. Jackson represents management in employment-related matters, including claims of discrimination, harassment, retaliation, wrongful discharge, restrictive covenants and wage and hour violations. With licenses in Tennessee and Mississippi, Russell regularly handles matters throughout the Mid-South as well as on a national basis. The firm also announced that Florida-based attorney Tracey K. Jaensch has been named to its executive committee.

Slatery Joins Coalition of State AGs Condemning Attack on U.S. Capitol

Tennessee Attorney General Herbert H. Slatery III has joined a bipartisan coalition of 50 states, territories and the District of Columbia, in sending a letter to Acting U.S. Attorney General Jeffrey A. Rosen condemning the Jan. 6 riot at the U.S. Capitol and stating such actions cannot be allowed to go unchecked. “What occurred January sixth was an assault on the very foundation of our republic. It threatened the rule of law and how we all, Republicans, Democrats and Independents, should be able to peacefully engage in government,” Slatery said. In related news, NBC News reports that Adam Piper, executive director of the Republican Attorneys General Association (RAGA), has resigned after news broke of the group’s involvement in a rally that took place earlier in the day last Wednesday.

Only Woman on Federal Death Row Executed This Morning

Lisa Montgomery, the only woman on federal death row, died by lethal injection early this morning after the U.S. Supreme Court vacated several rulings that had halted the move, National Public Radio reports. Earlier this week, a federal judge had granted a stay of execution citing the need to determine whether Montgomery was too mentally ill to be executed, while an appeals court said time was needed to determine whether the Justice Department had given sufficient notice of the execution date. With the Supreme Court’s action, Montgomery is now the first female prisoner to be put to death by the U.S. government since 1953. Just ahead of the execution, Montgomery’s attorney, Kelley Henry, said her client's death by lethal injection was far from justice, as no other woman who had committed a similar crime had faced the death penalty.

 
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LGBT Section Offering Roundtable on Working from Home

The TBA LGBT Section will host a roundtable videoconference on Jan. 27. The event will feature ethics considerations for attorneys when working from home, an open discussion of issues affecting LGBT lawyers and staying sane in a pandemic. The event is free and open to all TBA members but registration is required. Connection info will be sent the week of the meeting.

 
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Nashville Health Department Creates Vaccine 'Standby List'

The Nashville Metro Public Health Department has announced a new initiative to ensure no doses of COVID-19 vaccine are wasted, WSMV reports. The department currently offers vaccines by appointment only to those who fall into the current vaccine phase. The list has been created to ensure no doses are wasted. Just before the end of each day, nurses will determine if any doses will remain. If so, those doses will be distributed at random to individuals on the list. To add your name to the list, email COVID19VaccineStandby@nashville.gov each day you want to be considered. The Standby List began operations yesterday.

 
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Tool Kit Offers Tips for Lawyer Well-Being

The Lawyer Well-Being Tool Kit, a project of the American Bar Association and the Harvard School of Law Center on the Legal Profession, highlights the importance of lawyer well-being and offers suggestions for improving well-being from lawyers and legal employers. Topics include creating a healthy workplace, policies and practices to adopt, educational resources, finding a well-being partner and book recommendations. Check it out here.

 
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Judiciary Mourns Loss of Recovery Court Advocate Ellen Abbott

The Tennessee Judiciary is mourning the loss of Ellen Lee Abbott, director of the Office of Criminal Justice Services at the Tennessee Department of Mental Health and Substance Abuse Services (TDMHSAS), who died Monday at age 56. The Administrative Office of the Courts said today that Abbott played a vital role in the development and success of the state's recovery courts, including drug courts, Veterans courts, mental health courts and safe baby courts. Abbott joined TDMHSAS in 2006 and worked closely with many judges and court staff in nearly every Tennessee county over the years. She also played an essential role in both the Regional Judicial Opioid Initiative and the Tennessee Judicial Opioid Initiative, now known as the Tennessee SMART Justice Network. A celebration of life service for family and close friends will be held Friday at noon CST at Williamson Memorial Funeral Home. Visitation will take place prior to the service beginning at 10 a.m. Memorial donations may be made to any veteran organization. Read more about Abbott’s career and remembrances from colleagues on the AOC website. Post a remembrance here.

 
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Animal Law Forum Coming to Nashville Zoo in April

The TBA’s annual Animal Law Forum will take place April 9 at the Nashville Zoo and will provide updates on trends and advancements in animal law. The zoo’s president and chief executive officer will be on hand to discuss conservation efforts, laws affecting procurement, care for zoo animals and more. Five other speakers will cover topics such as ethical considerations for animals and the law, legislative updates and laws governing farm animals. Programming will run from 8:30 a.m. to 5 p.m. CST. Zoo admission, breakfast and lunch are included.

 
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What's Inside Your 401(K)?

The ABA Retirement Funds Program provides affordable 401(k) plans with no out-of-pocket expenses exclusively to law firms of all sizes, even solo practitioners. The program offers plan design flexibility, a broad range of investment options, full-service administration and professional fiduciary services. Call 866-812-3580 for a free consultation.

 
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.

IN RE ELLA H.

Court: TN Court of Appeals

Attorneys:

Amanda G. Crowell and Lindsey W. Johnson, Lebanon, Tennessee, for the appellants, Natasha F. and Shaee F.

Mingy Kay Ball, Smithville, Tennessee, for the appellee, Kenneth N.

Judge(s): ARMSTRONG

In this termination of parental rights case, Appellants Mother and Stepfather appeal the trial court’s finding that termination of Father’s parental rights was not in the Child’s best interest. Appellee Father appeals the trial court’s finding that he abandoned the Child by willful failure to visit and willful failure to support. Upon review, we conclude that Father abandoned the Child by willful failure to visit and support. Because the record supports the conclusion that termination of Father’s parental rights is in the Child’s best interest, we reverse the trial court as to this issue, and we remand for entry of an order terminating Father’s parental rights.

ellah_011321.pdf

FATMA ADEL SEKIK v. NEHAD ABDELNABI ET AL.

Court: TN Court of Appeals

Judge(s): PER CURIAM

On November 18, 2020, this Court filed its Opinion and Judgment in this appeal. No petition to rehear was filed by any party, and no application for permission to appeal has yet been filed in this case.

Pursuant to Rule 39(a) of the Tennessee Rules of Appellate Procedure, this Court may grant rehearing upon its own motion. Because we conclude that the opinion in this case contains an incorrect statement of law with regard to the issue of child support, we hereby vacate our November 18, 2020 Opinion and Judgment. We will contemporaneously file a revised Opinion and Judgment in accordance with this order.

sekikf_vacate_011321.pdf

KATRINA WALKER D/B/A RAINBOW KIDZ CHILD CARE CENTER v. TENNESSEE DEPARTMENT OF HUMAN SERVICES

Court: TN Court of Appeals

Attorneys:

Herbert H. Slattery, III, Attorney General and Reporter; Matthew Cloutier, Assistant Attorney General, for the appellant, Tennessee Department of Human Services.

Mimi Phillips, Memphis, Tennessee, for the appellee, Katrina Walker.

Judge(s): GOLDIN

In this Opinion, we are tasked with reviewing two separate cases concerning the State’s oversight of a child care center in Memphis. Somewhat uniquely, these cases were adjudicated under a single docket number in the Shelby County Chancery Court and were appealed to this Court in that posture. One of the cases, which concerns a petition for a writ of mandamus, was originally filed in the Davidson County Chancery Court and was subsequently transferred to the Shelby County Chancery Court. The second case involves judicial review under the Uniform Administrative Procedures Act. As to the mandamus case at issue, we conclude that venue lies only in Davidson County and, therefore, the trial court lacked subject matter jurisdiction to enter relief. Accordingly, that judgment is vacated, and we direct that the case be transferred back to the Davidson County Chancery Court. As to the case for judicial review, we conclude that the decision of the hearing officer was supported by substantial and material evidence and therefore reverse the trial court and remand for the entry of an order reinstating the hearing officer’s decision.

walkerk_011321.pdf

 

STATE OF TENNESSEE v. ANDRE BOWEN

Court: TN Court of Criminal Appeals

Attorneys:

Phyllis Aluko, District Public Defender; Barry W. Kuhn, Assistant Shelby County Public Defender, Memphis, Tennessee (on appeal) and Kendall Nance and Sam Christian, Assistant Shelby County Public Defenders, Memphis, Tennessee (at trial), for the appellant, Andre Bowen.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and Kevin McAlpin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): DYER

A Shelby County grand jury indicted the defendant, Andre Bowen, and his co-defendant, Anthony Olivo, for two counts of first-degree, felony murder (Counts 1 and 2) and attempted especially aggravated robbery (Count 3). The grand jury also indicted the defendant for two counts of unlawful possession of a firearm by a convicted felon (Counts 4 and 5). After a joint trial, the jury acquitted the defendant on Count 1 but found him guilty of the lesser-included offense of facilitation of first-degree, felony murder in Count 2, attempted especially aggravated robbery in Count 3, and unlawful possession of a firearm by a convicted felon in Counts 4 and 5, for which the trial court imposed an effective sentence of seventy-two years. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions and argues the trial court erred in sentencing. After our review, we affirm the judgments of the trial court, but remand the case for a new sentencing hearing as to Counts 4 and 5 to reflect the appropriate felony classification for each offense and for entry of new sentences for each conviction.

bowena_011321.pdf

STATE OF TENNESSEE v. ROBERT EARL GRADY, JR.

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Robert Earl Grady, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Jody Pickens, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The defendant, Robert Earl Grady, Jr., pleaded guilty to two counts of felon in possession of a firearm for which he received consecutive twelve-year sentences for an effective sentence of twenty-four years’ confinement. On appeal, the defendant contends the trial court erred by imposing consecutive terms. Upon our review of the record, the applicable law, and the arguments of the parties, we affirm the judgments of the trial court.

gradyr_011321.pdf

COY MCKAUGHAN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph A. Crone, Memphis, Tennessee, for the Appellant, Coy McKaughan.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): OGLE

The Petitioner, Coy McKaughan, filed a post-conviction petition in the Shelby County Criminal Court seeking relief from his conviction of aggravated sexual battery and accompanying twelve-year sentence in the Tennessee Department of Correction. The postconviction court denied the petition, and the Petitioner appeals. On appeal, the Petitioner contends that (1) his trial counsel was ineffective, (2) his appellate counsel was ineffective, (3) his due process rights were violated by the State’s withholding evidence in violation of Brady v. Maryland, (4) his due process rights were violated by the State’s assembling a “rigged grand jury foreperson,” (5) the State violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Tennessee Constitution, and (6) he was denied his constitutional right to a “full and fair” post-conviction hearing. Upon review, we affirm the judgment of the post-conviction court.

mckaughanc_011321.pdf

STATE OF TENNESSEE v. MILTON SIMPSON

Court: TN Court of Criminal Appeals

Attorneys:

J. Shae Atkinson (on appeal), and Michael J. Gatlin (at revocation hearing), Memphis, Tennessee, for the appellant, Milton Simpson.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kevin D. McAlpin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The Defendant, Milton Simpson, appeals as of right from the Shelby County Criminal Court’s order revoking his probation and imposing an effective ten-year sentence in confinement. On appeal, the Defendant contends that (1) the evidence was insufficient to establish that he violated the terms of his probation by breaking the law and that (2) his right of confrontation was violated when a court liaison testified in lieu of his probation officer and when a certified copy of an indictment was introduced as evidence. Following our review, we affirm.

simpsonm_011321.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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