TBA Today - Thursday, May 21, 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, May 21, 2020
Today's News
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AG Asks High Court to Hear Vouchers Program Decision

Attorney General Herbert Slatery has filed a request asking the Tennessee Supreme Court to intervene in the lawsuit against Gov. Bill Lee’s education savings account program, the Daily Memphian reports. The State Court of Appeals on Tuesday denied a request to allow the state to implement the voucher program while the court decided on its constitutionality. Lee said in a press conference today that Slatery’s motion seeks to lift an injunction from Davidson County Chancery Court so that the state can move forward in time for the school year in August. The Court of Appeals is not scheduled to hear oral arguments until Aug. 5, the day after school starts in Metro Nashville and just one week before class opens in Shelby County Schools.

 
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‘Operation Candy Crush’ Lawsuits Move Forward After Appeals Ruling

A ruling from the 6th Circuit Court of Appeals earlier this month will allow three lawsuits stemming from the 2018 “Operation Candy Crush” sting in Rutherford County to continue moving forward, the Daily News Journal reports. Seventeen business owners were arrested in the sting that targeted stores for illegally selling CBD-based products, but all charges were later dropped. The lawsuits claim the defendants, Rutherford County Sheriff Mike Fitzhugh, Assistant District Attorney John Zimmerman and District Attorney General Jennings Jones, were motivated by conspiracy to violate the plaintiffs’ rights. District Court Judge Aleta Trauger denied the defendants’ motion to dismiss in March 2019, prompting the appeal to the higher court. The 6th Circuit found that none of the defendants can claim immunity, with Circuit Judge Julia Smith Gibbons writing in the court’s opinion that Jones and Zimmerman were “objectively unreasonable in pushing the operation forward without probable cause.”

Cartwright Judged Best in Belmont Law's Legal Fiction Workshop

Belmont University College of Law recently announced the winner of its inaugural Legal Fiction Workshop. Freya Cartwright, a rising 3L, wrote the winning entry, “I Know She Tried.” The contest was judged by David Joffe and John Winston Heacock. Belmont’s Legal Fiction Workshop is conducted over the Spring semester as an extracurricular activity for a limited number of 2Ls and 3Ls in good standing. It is taught by Professor Kristi Arth, who designed the workshop as an incubator and space for students to produce creative work worthy of publication. Arth was the first place winner in the Tennessee Bar Journal's Fiction Contest in 2017. Watch for Cartwright's fiction in an upcoming issue of the Journal

 
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Alexander: Next COVID-19 Bill Needs Protections for Universities

Sen. Lamar Alexander told reporters today that university presidents across the state have concerns about facing legal actions for reopening in the fall, WPLN reports. The Republican senator, who serves as chairman of the U.S. Senate’s Education Committee, said that members of his party would push for liability protections for universities if a new COVID-19 relief bill is passed.  Alexander said a failure to do this could make what has been an already “difficult financial year” even more difficult. He also said more testing will be available for universities and businesses before the beginning of the fall semester.

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Slatery Joins Coalition Urging Congress to Pass First Responders Act

Attorney General Herbert Slatery today announced he has joined a bipartisan coalition of state attorneys general asking Congress to pass the Safeguarding America’s First Responders Act. Under that bill, families of first responders who have died or been totally disabled as a result of COVID-19 would receive the same federal benefits extended to first responders, or their survivors, otherwise killed or injured in the line of duty. Federal law currently allows survivors to access only certain benefits if they provide evidence that proves their family member contracted COVID-19 while on duty. The legislation would establish a temporary presumption that first responders contracted the virus while on duty if diagnosed within 45 days of their last shift. This legislation passed through the U.S. Senate and is currently being considered by the House of Representatives. Read the letter Slatery and 51 attorneys general sent today to Congress.

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ACLU Sues Shelby County to Release At Risk Inmates

The American Civil Liberties Union (ACLU) and Memphis-based Just City are among several legal organizations bringing a federal class action lawsuit against the Shelby County Sheriff’s Office, seeking the release of inmates most vulnerable to COVID-19, the Commercial Appeal reports. The lawsuit defines those most vulnerable as detainees over the age of 55 or those with previous medical conditions. This action comes after an announcement last month that nearly 200 inmates and staff tested positive at Memphis’ 201 Poplar Ave. facility. Shelby County officials have decreased the jail population by hundreds in recent months and District Attorney General Amy Weirich has worked to fast-track cases and says her office is dismissing many charges.

 
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Homemade Legal Automations Topic of Legal Hackers Virtual Meetup

The Music City Legal Hackers group is hosting a virtual meetup next week to discuss document automation and how it can be used to serve clients in the pandemic and beyond. Thomas Officer, co-founder and design lead at Community.Lawyer, will lead the Zoom presentation on how other legal professionals are using homemade legal automations to respond to the COVID-19 pandemic, with one example being a guided interview that helps tenants send letters to their landlord. The meetup will take place on May 27 at 5:30 p.m. with a 40-minute presentation followed by open Q&A and discussion. Get registered online or email Cat Moon with any questions. Participants will receive Zoom login instructions on the day of the event. Music City Legal Hackers is sponsored by Vanderbilt Law’s Program on Law and Innovation.

 
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TBA Podcast Network Offers Engaging, Relatable Content

From attorney well-being tips to feature stories on Tennessee attorneys or a monthly recap of legal news and bar association events — the TBA Podcast Network has a little something for everyone! Don’t miss out on the network’s roster of podcasts, including HealthyBar, Legislative Updates, BarBuzz, Sidebar and the TBA YLD Presents: War Stories. All shows are available on Apple Podcasts, Spotify, Google Play Sticher, the TBA’s website and anywhere you listen to podcasts. Do you have a story lead you’d like featured on one of our shows? Send us an email to let us know!

 
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 ARYANA S.

Court: TN Court of Appeals

Attorneys:

Wencke West, Cleveland, Tennessee, for the appellants, Quentin B. and Lacy B.

J. Patrick Henry, Kingston, Tennessee, for the appellee, Morgan S.

Judge(s): SWINEY

Lacy B. and Quentin B. (collectively, “Petitioners”) filed a petition for adoption and to terminate the parental rights of the mother, Morgan S. (“Mother”), to the minor child, Aryana S. (“the Child”). The Trial Court found that Petitioners had proven by clear and convincing evidence that the grounds of abandonment by failure to support and severe child abuse existed for termination of Mother’s parental rights but that termination of her rights was not in the Child’s best interest. Discerning no reversible error, we affirm.

aryanas_052120.pdf

BRUCE GILLAM v. DESTINY BALLEW

Court: TN Court of Appeals

Attorneys:

Shelley S. Breeding, Nancyjane B. Sharp, and Madeline S. Copes, Knoxville, Tennessee, for the appellant, Destiny Ballew.

Lauren R. Biloski and Channing R. Miller, Clinton, Tennessee, for the appellee, Bruce Gillam.

Judge(s): MCCLARTY

This appeal concerns the trial court’s designation of the father as the minor children’s primary residential parent after establishing his paternity. During trial, the court granted the father’s motion in limine to exclude testimony from the mother’s expert witness. The mother appeals the trial court’s evidentiary ruling and the designation of primary residential parent. We affirm the trial court’s decision.

gilliamb_052120.pdf

TENNESSEE STATE BANK v. DOUGLAS V. MASHEK ET AL.

Court: TN Court of Appeals

Attorneys:

Douglas Vernon Mashek and Deborah A. Mashek, Powell, Tennessee, Pro Se.

W. Morris Kizer, Knoxville, Tennessee, for the appellee, Tennessee State Bank.

Judge(s): FRIERSON

This case involves a home equity line of credit (“HELOC”) extended to the co-defendant, Douglas V. Mashek, by the plaintiff, Tennessee State Bank (“the Bank”), via a promissory note secured by a deed of trust encumbering real property titled to Mr. Mashek and acquired during Mr. Mashek’s marriage to the co-defendant, Deborah A. Mashek. When the Bank subsequently attempted to foreclose on the property, Mr. Mashek objected based on alterations to the deed of trust and a notice of right of rescission that had allegedly occurred after the deed’s execution and prior to recordation. The Bank filed a complaint against the Masheks in the trial court, seeking declaratory judgment that the recorded deed of trust was valid and enforceable, or in the alternative, reformation of the executed deed of trust to conform to the recorded deed. The Bank also named the title company involved in the loan transaction as a third-party defendant, alleging the title company’s liability in the event that the trial court found the deed of trust, either as executed or as recorded, to be unenforceable. The Masheks, proceeding pro se, filed various pleadings in response to the complaint, including a counterclaim against the Bank, alleging, inter alia, common law fraud, breach of fiduciary duty, negligence, equitable estoppel, slander of title, statutory estoppel, wrongful foreclosure, and unclean hands. Upon the Bank’s motion for partial summary judgment and following a hearing, the trial court granted the motion as to reformation of the executed deed of trust, declaring the deed, as reformed, to be enforceable and finding that the Bank was entitled to pursue foreclosure proceedings. The trial court found in part that the Bank or its agent(s) had employed “procedurally questionable and perhaps fraudulent” methods that were “at the very least negligent and potentially criminal in nature” to correct mistakes in the executed deed of trust and to, without authorization, affix the Masheks’ initials over a change in a date of signature on the notice of right of rescission. However, having also found that the mistakes corrected were mutual and amounted to scrivener’s errors that were not intended to and did not prejudice the Masheks, the trial court granted the Bank’s request to reform the executed deed of trust. The trial court awarded to the Bank a monetary judgment against Mr. Mashek, as the sole debtor named in the loan documents, in the amount of $294,566.39 for unpaid principal and interest. The trial court also awarded to the Bank reasonable attorney’s fees and expenses in the amount of $8,795.84, limiting such fees to those that “would be expected in an ordinary foreclosure action.” The trial court dismissed the Masheks’ various counterclaims and subsequently denied the Bank’s motion to alter or amend language in the judgment. The Masheks have appealed, and the Bank has raised issues regarding the trial court’s denial of its request to alter the court’s findings and denial of its request for additional attorney’s fees and expenses. Having determined that the Bank or its agent(s) made a unilateral mistake in materially altering the deed of trust after the document’s execution and then recording the altered deed of trust with the unilateral mistake incorporated, we reverse the trial court’s judgment as to the reformation and enforceability of the executed deed of trust. Having also determined that the action of the Bank or its agent(s) in affixing the Masheks’ initials over the altered date on the rescission notice without authorization or notice constituted gross negligence, we reverse the trial court’s finding that no gross negligence occurred but affirm the trial court’s implied finding that the Bank could not succeed in its request to reform the effective date of the rescission notice. However, concluding that no alterations were made to the promissory note, we further determine that the trial court properly found Mr. Mashek to be liable for the unpaid principal and interest due under the terms of the note. We therefore affirm the trial court’s $294,566.39 monetary judgment against Mr. Mashek. We vacate the trial court’s award of attorney’s fees and expenses to the Bank and remand for a hearing to determine the amount of attorney’s fees and expenses incurred by the Bank solely to obtain a judgment based on the promissory note. We affirm the trial court’s judgment in all other respects, including its denial of the Bank’s request for additional attorney’s fees and expenses and its denial of the Bank’s motion to alter or amend the language of the judgment. Finally, we clarify that no evidence has been presented in this case to support a finding of the intent necessary for forgery as a cause of action against the Bank or its agent(s).

tennesseestatebank_052120.pdf

 

STATE OF TENNESSEE v. DANIEL T. GINTHER

Court: TN Court of Criminal Appeals

Attorneys:

Matthew J. Crigger, Brentwood, Tennessee (on appeal); and Chelsea Brooke Curtis, Franklin, Tennessee (at trial), for the appellant, Daniel T. Ginther.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Kim R. Helper, District Attorney General; and Carlin Charles Hess, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The Defendant, Daniel L. Ginther, appeals as of right from the Williamson County Circuit Court’s revocation of his probation and reinstatement of the remainder of his eight-year sentence for passing worthless checks in the amount of $1,000 or more but less than $10,000. On appeal, the Defendant asserts that the trial court abused its discretion by ordering the Defendant to serve the remainder of his sentence in confinement in spite of the Defendant’s “serious medical issues.” Following our review, we affirm.

gintherd_052120.pdf

STATE OF TENNESSEE v. PAUL KOLB

Court: TN Court of Criminal Appeals

Attorneys:

Paul Kolb, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Brooks Yelverton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

Paul Kolb, Movant, pled guilty on November 18, 2011, to rape of a child, rape, incest, and aggravated sexual battery. Pursuant to a plea agreement, the trial court imposed an effective sentence of twenty-five years at one hundred percent service. On April 10, 2018, Movant filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct what he claimed was an illegal sentence in Count 1, rape of a child. The trial court determined the sentence was not illegal and dismissed the motion. We affirm.

koldp_052120.pdf

RODOLFO GUERRA-ROSALES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

David I. Komisar, Nashville, Tennessee, for the appellant, Rodolfo Guerra-Rosales.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

The Petitioner, Rodolfo Guerra-Rosales, pleaded guilty in General Sessions Court to misdemeanor drug possession, and the court imposed a probation sentence of eleven months and twenty-nine days. The Petitioner timely filed a post-conviction petition in circuit court, alleging that his guilty plea in general sessions court was involuntary based upon the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition, concluding that the claim was not cognizable and that the court lacked jurisdiction to hear the petition. On appeal, the Petitioner asserts, and the State concedes, that the post-conviction court had jurisdiction to consider the petition and that his petition stated a colorable claim. After review, we reverse the post-conviction court’s dismissal and remand for an evidentiary hearing on the Petitioner’s claim.

rosalesr_052120.pdf

MICHAEL JOHN STITTS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Joseph T. Howell, Jackson, Tennessee, for the Petitioner, Michael John Stitts.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Jody Pickens, District Attorney General; and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

The Petitioner was convicted by a Madison County jury of attempted first-degree murder, aggravated assault, aggravated burglary, and employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of sixty-one years’ imprisonment. State v. Michael John Stitts, No. W2017-00209-CCA-R3-CD, 2018 WL 2065043, at *1 (Tenn. Crim. App. Apr. 27, 2018), appeal denied (Aug. 8, 2018). After his convictions were affirmed by this Court, the Petitioner filed a petition for postconviction relief alleging ineffective assistance of trial counsel based on various grounds, which was denied following a hearing. In this appeal, the Petitioner raises the same issues and contends that trial counsel was ineffective in (1) failing to conduct a proper investigation into the facts of the case; (2) failing to object to improper witness testimony; (3) failing to adequately cross-examine witnesses; (4) failing to file certain pre-trial motions; and (5) failing to ensure juror impartiality. Upon our review, we affirm the judgment of the post-conviction court.

stittsm_052120.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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