TBA Today - Friday, April 30, 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
Friday, April 30, 2021
Today's News
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Legislature Approves $42.6B Budget, 2.4M Included for ‘Super’ Chancery Court

The Tennessee House and Senate yesterday approved a $42.6 billion annual spending plan for 2022, the Tennessean reports. Highlights include $2.4 million to create a statewide chancery court, designed to take constitutional challenges to state laws out of the hands of the Davidson County Chancery Court, and increased funding for the Tennessee Attorney General’s Office. With regard to the professional privilege tax, lawmakers rejected Gov. Bill Lee’s proposal to reduce the tax from $400 to $300, opting instead to enact a more robust reduction, or possible elimination, next year. The bill also includes $784,000 for the District Attorney's Conference to make technology improvements that will complete and expand a new case management system for electronic discovery. The group has begun conversations with the Administrative Office of the Courts and Tennessee Department of Correction on how the system could be used in other ways such as expanding electronic judgements.

The approved plan also includes $121,000 for Lipscomb University’s LIFE Program, which provides opportunities for traditional students to study and learn alongside residents of the Tennessee Prison for Women. Finally, the bill provides a week-long sales tax holiday for groceries and prepared food, funding for a state commission to study medical marijuana, $250 million for a mental health trust fund, $250 million for the state’s retirement fund, and $5.3 million for nonprofit organizations working on sex trafficking issues. Having now passed a budget, lawmakers plan to return to Nashville next week to complete selected remaining legislation, including the “behind the budget” bills that were included in the final appropriations bill. Adjournment is expected to take place sometime the middle of next week.

 

Nominations for TBA Awards Due Monday

Nominations for two of the Tennessee Bar Association’s annual awards are due Monday. The Justice Frank F. Drowota III Outstanding Judicial Service Award honors a judge or judicial branch official of a federal, state or local court in Tennessee who has demonstrated extraordinary devotion and dedication to the improvement of the law, our legal system and the administration of justice as exemplified by the career of Justice Frank F. Drowota III. The Claudia Jack Award honors an outstanding public defender or court-appointed private practitioner who has served the legal community and their clients in an exemplary fashion. It is named after the late Claudia Jack, a public defender and long-time champion of the poor and underprivileged.

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Help4TNMonth Wraps Up with Highlights from AOC

The legal community, including law students from a number of schools, provided meaningful opportunities for Tennesseans to connect to civil legal help during Help4TNMonth, the Administrative Office of the Courts reports. Events this month included a Faith and Justice Phone-In General Legal Advice Clinic in Knoxville, a statewide virtual town hall on Tennessee’s mandatory reporting laws and best practices for dealing with survivors of assault, and continued efforts to assist courts facing a backlog of civil cases caused by the COVID-19 pandemic. At the legal clinic in Knoxville, 22 students from the Lincoln Memorial University Duncan School of Law conducted intake, completed necessary paperwork and provided case summaries to the attorney volunteers. Students from the University of Tennessee College of Law also participated. Read more about these activities and reflections from attorney volunteers who participated on the AOC website.

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KBA Names Law & Liberty Award Winner

In advance of tomorrow’s Law Day celebration, the Knoxville Bar Association announced that Spencer Fair with London Amburn has won its 2021 Law & Liberty Award. Fair was honored for organizing monthly Veterans Legal Advice Clinics, which provide legal services to veterans and their families. Over the past five years, more than 100 attorneys and law students have assisted close to 500 in need. Watch the presentation ceremony here. Also read the ABA's statement on Law Day and get resources for marking the day.

6th Circuit Hears Arguments in 'Reason Ban' Abortion Law

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit heard arguments yesterday in a case challenging the constitutionality of a Tennessee law that blocks patients from obtaining abortions for specific reasons, such as a Down syndrome diagnosis, and allows felony charges against health care providers who knowingly perform abortions for such reasons. Less than an hour after the governor signed the proposal into law last summer, District Judge William L. Campbell halted the measure from taking effect while the appeals process played out. Last November, the appeals court overturned Campbell's ruling in part, allowing the ban to be enforced during the appellate proceedings, but gave opponents more time to make their case. Earlier this month, the appeals court upheld a similar "reason ban" in Ohio, the Tennessean reports.

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New Survey: Americans Divided by Age, Race on Fairness of Justice System

A new study released by the American Bar Association yesterday found stark divisions based on age and race when it comes to believing whether there are racial biases built into the rules, procedures and practices of the justice system. Among white respondents, 45% said such biases exist compared to 80% of Black respondents and 63% of Hispanic respondents. The ABA 2021 Survey of Civic Literacy also discovered that more than two-thirds of Americans age 18-34 believe racial biases exist in the justice system, while only about one-third age 65 and older do. In addition to the traditional civics questions that are asked, the survey included questions related to the rule of law, equal application of the law, perception of police, charging juveniles as adults, defunding the police and mass incarceration.

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Court of Workers’ Comp Claims to Hold ‘Listening Tour’

Tennessee Court of Workers’ Compensation Claims Chief Judge Kenneth M. Switzer will hold a “listening tour” in May with sessions beginning at 1 p.m. CDT on May 7 and 14. There is no agenda. Open discussion about any subject dealing with the court, the future of settlement procedures, trials, courtroom protocols and comments on rules are encouraged. To get your personal invite please email Clerk Penny Shrum. Let her know which date(s) you would like to attend and she will send the link to join the discussion on the morning of the event.

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Juvenile Judges Discuss Effects of Pandemic on Child Abuse

Tennessee’s juvenile court judges know all too well the life-altering effects of child abuse, and this year especially, are deeply concerned about the well-being of the state’s children, the Administrative Office of the Courts reports. As National Child Abuse Prevention Month comes to end today, Williamson County Juvenile Court Judge Sharon Guffee and Sevier County General Sessions and Juvenile Court Judge Jeff Rader talk about the unprecedented challenges currently facing Tennessee youths. Read more about what they are seeing in their courts.

1st Shelby County Criminal Jury Trial Canceled When Defendant Enters Plea Deal

The first Shelby County criminal jury trial in more than 13 months was supposed to have gotten underway Monday, but the defendant entered a guilty plea before the jury was seated, the Commercial Appeal reports. The trial was to take place in one of two brand-new, spacious courtrooms with plastic barriers and other features designed to reduce the spread of the new virus. No trials are scheduled next week, so the new courtrooms will sit empty until at least May 10 when the next trial is scheduled.

 
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Late Sen. Harper to Lie in State Wednesday

Longtime Tennessee state senator Thelma Harper will lie in state from 10 a.m. to 2 p.m. CDT Wednesday at the state capitol, becoming the first African American woman to receive that honor. Harper, the first African American woman elected to the state Senate and longest serving female senator in state history, died April 22 at the age of 80. A four-day celebration is being planned next week at locations around Nashville that were important in her life: a community viewing at Schrader Lane Church of Christ on Monday, viewing at the Historic Metropolitan Courthouse on Tuesday, and a celebration of life, internment and barbecue in her honor on Thursday. WKRN has the schedule.

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Legislature Allows College Athletes to Earn Money off Name, Image

Tennessee lawmakers this week gave final approval to a bill that will allow athletes at colleges in the state to earn money off their name, image and likeness. Schools would be required to conduct financial literacy workshops and players would be prohibited from endorsing gambling, alcohol, tobacco or adult entertainment products. Gov. Bill Lee is expected to sign the bill, the Nashville Post reports. The bill will take effect Jan. 1, 2022. The move comes as the NCAA is considering a nationwide name, image and likeness framework.

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Remaining Cannabis Legislation Fails in House Committee

A medical marijuana bill that was the main remaining vehicle for advancement of cannabis legislation in 2021 failed in a House committee this week, Nashville Post reports. The bill, which would have decriminalized possession of limited amounts of medical marijuana for certain conditions, lost on a 8-9 vote in the House Criminal Justice Committee despite support from committee chair Rep. Michael Curcio, R-Dickson, and Speaker of the House Cameron Sexton, R-Crossville. The legislation had previously passed the Senate Judiciary Committee.

 
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AG Urges Court to Reject Mississippi Groundwater Claims

Tennessee Attorney General Herbert H. Slatery III last week called on the U.S. Supreme Court to reject claims that the state violated Mississippi’s sovereignty when it pumped water from a vast aquifer in the region, Bloomberg Law reports. The filing comes after a special master appointed by the high court to consider the matter recommended rejecting Mississippi’s claims last year. The longstanding dispute between the two states centers on whether a Memphis utility interfered with Mississippi’s authority over its land and waters when it pumped water from the Sparta-Memphis Aquifer. Mississippi asked the Supreme Court to recognize its right to the groundwater and impose damages on Tennessee.

 

2 Lawyers Reinstated

Rutherford County attorney Benjamin Douglas Groce was reinstated to the practice of law on April 19. The Tennessee Supreme Court approved the petition for reinstatement saying Groce had paid all delinquent fees. He had been suspended for fee violations in 2011 and 2013. Florida attorney Jason Matthew Mayberry was reinstated to the practice of law in Tennessee on April 21, retroactive to April 12. He was placed on inactive status more than five years ago.

 
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Business Law Forum to Examine Valuations

The TBA’s Business Law Section will host a two-day forum May 20-21 from 9 a.m. until 12:15 p.m. CDT both days. Join this virtual program for an examination of the critical aspects of valuation rules and guidelines in the context of M&A deals. Forum faculty includes certified valuation experts, business law professors, M&A attorneys, investment bankers and venture capital firms focusing on early-stage investments. Register now for the forum worth one dual and five general CLE credits.

 
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Insurance Discount for Boats, RVs, Cars and More

Need insurance for your motorcycle, RV, boat, house or rental unit? GEICO can help you find great coverage at an affordable rate. Get a free, no-obligation rate quote here or call 1-800-368-2734 to speak with an agent. Make sure to mention your TBA membership to be eligible for that special discount.

 
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.

KIMBER KEPLINGER BASTONE v. JAMES MICHAEL BASTONE

Court: TN Court of Appeals

Attorneys:

Sandra J. Bott, Chattanooga, Tennessee, for the appellant, James Michael Bastone.

Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee, Kimber Keplinger Bastone.

Judge(s): FRIERSON

This is a consolidated appeal from judgments entered upon two post-divorce petitions filed by the mother, seeking to modify the parties’ permanent parenting plan to require the father to pay an upward deviation in child support to fund private school tuition at Baylor School in Chattanooga (“Baylor”), first for the parties’ eldest of three children in one petition and then for the parties’ middle child in the second petition. The father filed an answer objecting to the expense of Baylor tuition given the parties’ respective financial situations. He also filed a counter-petition alleging that the mother had violated the joint decision-making provision in the permanent parenting plan by unilaterally enrolling the eldest child at Baylor. Although both parties sought essentially equal coparenting time, the father also requested modification of the permanent parenting plan to designate him as the primary residential parent. Each party requested sole educational decision-making authority. Following a bench trial as to the first petition, the trial court, inter alia, approved the parties’ stipulation that a material change in circumstance had occurred since entry of the prior order; maintained the mother as the primary residential parent; maintained joint decision-making authority; found that although the mother had unilaterally enrolled the eldest child at Baylor, it was in the child’s best interest to remain at the school; and found that an upward deviation in the father’s child support obligation was appropriate to fund sixty percent of the Baylor tuition for the eldest child. During a subsequent bench trial on the mother’s second petition, the Baylor financial aid director, who had testified during the first trial concerning typical financial aid awards, testified that neither of the children at issue had been awarded financial aid for the upcoming year. The trial court sua sponte amended its prior order to reduce the upward deviation in the father’s child support obligation to fifty percent of the Baylor tuition for the eldest child and to eliminate the father’s responsibility for any extracurricular expenses at Baylor. The trial court entered a separate judgment dismissing the mother’s petition as to the middle child but including a provision that the mother would be allowed to enroll the middle child at Baylor or another private school provided that the father was not responsible for any portion of the tuition. The trial court incorporated its rulings into a modified permanent parenting plan that included a prohibition against enrollment of the third child in private school absent agreement of the parties or a subsequent court order. The father has appealed both judgments. Having determined that the upward deviation in child support for the eldest child should be capped at no more than fifty percent of the 2020-2021 Baylor tuition amount testified to at the time of trial, we modify the deviation to equal the lesser of (a) $13,200.00 annually or (b) fifty percent of the current annual Baylor tuition each year for the eldest child after deduction of proceeds from scholarships, grants, stipends, or other cost-reducing programs received by or on behalf of the child. We affirm the trial court’s judgments in all other respects and deny the father’s request for attorney’s fees on appeal.

bastonek_043021.pdf

STACEY M. LITTLETON v. JAMES MARTIN ET AL.

Court: TN Court of Appeals

Attorneys:

Stacey Littleton, Springfield, Tennessee, pro se.

Jerome Michael Converse, Springfield, Tennessee, for the appellees, Harvey W. Coombs and Coombs Industrial Services, Inc.

Jeff K. Walker, Springfield, Tennessee, for the appellees, James Martin and Gwendolous Martin.

Shelton Larry Evilcizer, Springfield, Tennessee, pro se.

Judge(s): PER CURIAM

The plaintiff appeals from an order dismissing two of the defendants. Because the order does not resolve all of the claims between all of the parties, we dismiss the appeal for lack of a final judgment.

littletons_043021.pdf

SARA MARIE POE MOSSBECK v. JOHN POLLARD HOOVER, JR.

Court: TN Court of Appeals

Attorneys:

John P. Konvalinka and Jillyn O’Shaughnessy, Chattanooga, Tennessee, for the appellant, John Pollard Hoover, Jr.

Harold L. North, Jr., and Nathan L. Kinard, Chattanooga, Tennessee, for the appellee, Sara Marie Poe Mossbeck.

Judge(s): SWINEY

This case involves a post-divorce action, in which the father filed a petition for contempt against the mother, alleging that the mother failed to pay her portion of the child’s medical expenses pursuant to the permanent parenting plan. The Trial Court denied the father’s request that the mother be held in contempt but awarded the father a judgment for the mother’s portion of the child’s medical expenses. The Trial Court declined to award attorney’s fees to the father and ordered that the mother be permitted to make installment payments to the father. We vacate the Trial Court’s order permitting the installment payments as being premature. We further modify the judgment against Mother to $38,759.11 upon our determination that the amount paid by the father to Mountain Management and Denials Management was only $1,781.76. We affirm the Trial Court’s judgment in all other aspects.

mossbecks_043021.pdf

 

CHARLES D. JOHNSON v. BERT BOYD, WARDEN

Court: TN Court of Criminal Appeals

Attorneys:

Charles D. Johnson, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; and Kenneth C. Baldwin, District Attorney General, for the Appellee, State of Tennessee.

Judge(s): OGLE

The Petitioner, Charles D. Johnson, filed for habeas corpus relief from his convictions of felony murder and especially aggravated robbery and the accompanying total effective sentence of life without the possibility of parole plus twenty-five years. The Petitioner alleges that the judgments are void because he was never indicted for the offenses of which he was convicted and that the trial court, therefore, did not have jurisdiction to try him or enter any judgment in his case. The habeas corpus court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court.

johnsonc_043021.pdf

STATE OF TENNESSEE v. THARCISSE JOHN NKURUNZIZA

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan P. Harwell (on appeal) and Carter Pack (at guilty plea and sentencing hearings), Knoxville, Tennessee, for the appellant, Tharcisse John Nkurunziza.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant Attorney General; Charme P. Allen, District Attorney General; and Gregory Eshbaugh, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): OGLE

The Appellant, Tharcisse John Nkurunziza, pled guilty in the Knox County Criminal Court to vehicular assault, a Class D felony, with the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to four years to be served as ten months in jail followed by supervised probation. On appeal, the Appellant claims that his sentence is excessive because the trial court misapplied enhancement factors and that the trial court erred by denying his request for full probation. The State acknowledges that the trial court misapplied two of the three enhancement factors but contends that the record justifies the sentence. Based upon the oral arguments, the record, and the parties’ briefs, we agree with the State and affirm the judgment of the trial court.

nkurunzizat_043021.pdf

STATE OF TENNESSEE v. DESIREE PETTY

Court: TN Court of Criminal Appeals

Attorneys:

Donnavon Vasek, Jr., Lebanon, Tennessee, for the appellant, Desiree Petty.

Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant Attorney General; Jason L. Lawson, Pro Tempore District Attorney General; and Justin G. Harris, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

The Defendant, Desiree Petty, pleaded guilty to burning personal property or land, facilitation to commit felony arson, and multiple misdemeanor offenses. The trial court sentenced her to four years of incarceration, suspended in lieu of service of twelve years of probation, and $150 monthly restitution payments. In 2010, the trial court found that she had violated her probation and extended her probation for two years. In October 2019, the trial court issued a probation violation warrant based on allegations that she had failed to appear, failed a drug screen, and missed monthly restitution payments. At a hearing, the Defendant conceded that she failed the drug test. The trial court then, sua sponte, revisited the Defendant’s restitution and ordered her to pay an increased amount of monthly restitution. It also revoked her probation, required her to serve ninety days in jail, and returned her to probation, adding an additional year. The Defendant appeals. After review, we affirm in part, reverse in part, and remand the trial court’s judgment.

pettyd_043021.pdf

 

UNITED STATES OF AMERICA v. DWAYNE SHECKLES

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED and ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant.

ARGUED and ON BRIEF: L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.

Judge(s): ROGERS, NALBANDIAN, and MURPHY, Circuit Judges

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

MURPHY, Circuit Judge. After a lengthy investigation, the federal government uncovered substantial evidence that Dwayne Sheckles was a Louisville distributor for a large drug-trafficking ring. Sheckles pleaded guilty but reserved the right to appeal the district court’s refusal to suppress much of this evidence. His appeal raises many Fourth Amendment questions. To name a few: What type of evidence creates probable cause to obtain a warrant for a phone’s location data after Carpenter v. United States, 138 S. Ct. 2206 (2018)? Did a sufficient “nexus” exist between Sheckles’s drug dealing and two apartments to justify search warrants for the apartments? Did officers lawfully stop Sheckles’s vehicle after he left one of these apartments while they were in the process of seeking the warrants? And does a third party’s lack of apparent authority to consent to a search make a difference if officers learn after the search that the party had actual authority to consent? Ultimately, we find no Fourth Amendment violations and thus affirm.

shecklesd_043021.pdf

WENDI C. THOMAS v. CITY OF MEMPHIS, TENNESSEE; JIM STRICKLAND, Individually; URSULA MADDEN, Individually

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED and ON BRIEF: Paul R. McAdoo, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Brentwood, Tennessee, for Appellant.

ARGUED and ON BRIEF: Bruce A. McMullen, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWIZ, P.C., Memphis, Tennessee, for Appellees.

ON BRIEF: Michael F. Smith, THE SMITH APPELLATE LAW FIRM, Washington, D.C., for Amici Curiae.

Judge(s): SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges

Court Appealed: United States District Court for the Western District of Tennessee at Memphis

BERNICE BOUIE DONALD, Circuit Judge. Plaintiff Wendi Thomas (“Plaintiff”), a well-known media figure in Memphis, alleges that the City of Memphis (“the City” or “Defendant”) excluded her from the City’s Media Advisory List in retaliation for her news coverage of Mayor Jim Strickland. Plaintiff filed suit against the City, seeking injunctive and declaratory relief based on her claims that the City’s actions amounted to violations of the First, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the Tennessee Constitution. Thirteen days after Plaintiff filed suit, the City changed its media relations policy so that all media advisories would be posted on the City’s website or on designated social media.

The City moved for dismissal, and, finding that the City’s actions mooted Plaintiff’s claims, the district court granted that motion. For the following reasons, we AFFIRM the district court.

thomasw_043021.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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