TBA Today - Friday, May 22, 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
Friday, May 22, 2020
Today's News

ABA Council Endorses Rule Change That Would Allow Expanded Online Learning

The council of the ABA's Section of Legal Education and Admissions to the Bar would have more authority to enact short-term, emergency policies and procedures for schools under a proposed rule change endorsed by the group today. The move comes after law school deans expressed concerns that teaching online for the fall term might run afoul of Standard 306, which allows for only up to one-third of credits to be taught online unless a variance is given. The proposal would allow the council to adopt emergency policies and procedures in response to “extraordinary circumstances” to waive those limitations for all law schools. The rules change will need to be approved by the ABA House of Delegates at its Annual Meeting in August before taking effect. The council also considered several other proposals related to the impact of the COVID-19 pandemic. The ABA Journal has the details.

 
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TBA Will be Closed Monday for Memorial Day

The Tennessee Bar Association will be closed Monday for the Memorial Day holiday. We will reopen at 8 a.m. CDT on Tuesday, though staff will continue to work remotely because of the COVID-19 pandemic. Access email addresses and direct lines for staff here.

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Media Access to be Limited for Plea Hearing Next Week

An in-person plea hearing will be held on May 27 at 2:30 p.m. for Danny Weld-Ebanks, who was indicted in September 2019 for vehicular manslaughter by recklessness for a crash that killed Matthew Kenigson, the spouse of Nashville General Sessions Judge Lynda Jones. The hearing will take place at the Montgomery County Court Center and will be presided over by Rutherford County Circuit Court Judge Barry Tidwell. The case was moved by agreement of the parties because of COVID-19 travel restrictions set by Fort Campbell, where Weld-Ebanks is stationed. Access to the courthouse will be limited pursuant to the judicial emergency order, but the Supreme Court is offering two options to media interested in covering the proceeding: a video recording available one hour after the hearing or one pool camera that would record from the courtroom. Media outlets should express their preference to Barbara Peck, 615-440-2555. A final decision about access will be made by noon on May 26.

Workers’ Comp Court to Continue Telephonic Settlements through July

The Court of Workers’ Compensation Claims announced today that it will continue to handle settlement approvals by telephone through July. The court reports that this new, temporary process is working well and keeping everyone safe. It will reevaluate its decision in the coming weeks and make another announcement regarding proceedings for August and into the fall.

Bass Berry Recognized with Diversity Team Award

Nashville-based law firm Bass Berry & Sims has been recognized with Profiles in Diversity Journal’s inaugural Diversity Team Award, the Nashville Post reports. The award recognizes those whose work supports and advances diversity and inclusion within their respective industries. “Our entire firm is our diversity team, as we are all ambassadors, allies and active participants in our inclusion and diversity initiatives and programs,” said Michele Bendekovic, director of diversity and inclusion at the firm. “Fairness, equal opportunity and responsibility guide us in building and sustaining a firm and culture that is inclusive and diverse. Embracing these principles strengthens who we are as a firm and enhances the services we provide to our clients and our communities …”

 
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AG Urges Congress to Fund Access to Broadband

Tennessee Attorney General Herbert H. Slatery III has joined 38 attorneys general in urging Congress to help ensure all Americans have the home internet access they need to participate in telemedicine, teleschooling and telework. The group lauded independent efforts of various companies to increase access by waiving late fees or even providing free or discounted access to students and medical providers, but said such efforts are not sustainable. They instead argue for a national solution as part of any additional legislation that provides relief and resources related to the COVID-19 pandemic. Read the letter.

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Results from Above the Law’s Pandemic Survey Now Available

The results of a survey conducted by Major, Lindsey & Africa and Above the Law in April to gauge the impact of the COVID-19 pandemic on law firms are now available. The report, “The Unprecedented Challenge of COVID-19: Findings from the 2020 Major, Lindsey & Africa and Above the Law Law Firm Associate Survey,” offers a detailed picture of how law firms and individual associates are coping with the ongoing disruption and the prospect of lasting change. Topics covered include communication transparency, technological resources, firm culture and long-term effects on the profession. Download a copy of the report.

 
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Ramsey's 'Ode to Otha Online' to Raise Money for 2nd Harvest

The 26th annual "Ode to Otha" event, hosted by Neal & Harwell's Bill Ramsey, will be held virtually on May 30 from 2 to 9 p.m. The event celebrates the birthday of legendary musician Otha Turner while also raising money for Second Harvest Food Bank. The celebration is normally held in Nashville each year, but due to concerns surrounding the COVID-19 pandemic, the block party has gone virtual. See the lineup of musicians and get information on accessing the live stream. Donations to Second Harvest Food Bank can be made here.

 

Memphis Firm Seeking General Litigation Associate

Apperson Crump PLC, the oldest continuously operating law firm in Memphis, is seeking an associate attorney with two to five years experience in general litigation. Medical malpractice experience is a plus. The successful candidate will have excellent people skills and a proven ability to work in a deadline-driven environment. The firms says it offers a professionally challenging workplace, competitive compensation package and pleasant working environment. Please send resume, references and salary requirements to tbutler@appersoncrump.com.

 

Shelby County Lawyer Disbarred

The Tennessee Supreme Court today disbarred Shelby County lawyer Paul James Springer and ordered him to pay restitution to three clients in the amount of $59,250. The court took the action based on three petitions for discipline that contained five complaints against him. The court found that Springer misappropriated settlement funds belonging to a client; engaged in criminal conduct as well as conduct involving dishonesty, deceit, misrepresentations and fraud; made material misrepresentations to clients; failed to reasonably communicate with clients; engaged in the unauthorized practice of law; failed to notify clients of his suspension; and failed to withdraw as attorney of record. His actions violated Rules of Professional Conduct 1.1, 1.2, 1.3, 1.4, 1.7, 1.15-16, 4.2, 5.5, 8.1 and 8.4 (a), (b), (c), and (g).

New Jersey Lawyer Placed on Disability Inactive Status

The Tennessee Supreme Court yesterday transferred the law license of New Jersey lawyer Deon Devall Owensby to disability inactive status pursuant to Section 27.4 of Tennessee Supreme Court Rule 9. Owensby may not practice law while on inactive status. He may return to the practice of law after reinstatement by the court by showing clear and convincing evidence that the disability has been removed and he is fit to resume the practice of law.

 
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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 practioners. 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 or visit www.abaretirement.com.

 
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.

KAREN POTTER v. YAPP USA AUTOMOTIVE SYSTEMS, INC.

Court: TN Court of Appeals

Attorneys:

Stephen C. Crofford and Mary Ann Parker, Brentwood, Tennessee, for the appellant, Karen Potter.

Timothy K. Garrett and Kimberly S. Veirs, Nashville, Tennessee, for the appellee, Yapp USA Automotive Systems, Inc.

Judge(s): BENNETT

An employee filed and settled a workers’ compensation claim against her employer for injuries sustained in an assault. The employee then filed a complaint under the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 to -702, alleging that the assault, in conjunction with a previous incident, constituted sexual harassment that created a hostile work environment. The trial court granted summary judgment for the employer, and the employee appealed. We affirm the trial court’s decision.

potterk_052220.pdf

STRATEGIC ACQUISITIONS GROUP, LLC v. PREMIER PARKING OF TENNESSEE, LLC

Court: TN Court of Appeals

Attorneys:

Robert Cuyler Haskins and Wesley Edward Shipe, Knoxville, Tennessee, for the appellant, Strategic Acquisitions Group, LLC.

Celeste Huffman Herbert, Knoxville, Tennessee, for the appellee, Premier Parking of Tennessee, LLC.

Judge(s): STAFFORD

Plaintiff lessor appeals the trial court’s decision to grant summary judgment concerning the interpretation of a lease in favor of the defendant lessee. Discerning no error, we affirm.

sag_052220.pdf

 

DAN E. DURELL v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Dan E. Durell, Washington, D.C., Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Charme P. Allen, District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The pro se petitioner, Dan E. Durell, appeals for the denial of his petition for writ of habeas corpus by the Criminal Court for Knox County, arguing the habeas court erred in summarily dismissing his petition. The petitioner asserts he is entitled to habeas corpus relief because the State withheld evidence favorable to the petitioner’s sentencing, his convictions violated double jeopardy protections, and the trial court relied on “improper, inaccurate, and mistaken information” in sentencing him. However, as noted by the State in its brief, the petitioner’s appeal is untimely, and our review of the record and the petitioner’s claims does not support a finding that the interest of justice supports the waiver of the petitioner’s untimely notice of appeal. Accordingly, we dismiss the appeal.

durelld_052220.pdf

KAMONIE ECTOR v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Kamonie Ector.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Charme Allen, District Attorney General; and Phil Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): DYER

The petitioner, Kamonie Ector, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel prior to and during his guilty plea hearing. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

ectork_052220.pdf

STATE OF TENNESSEE v. BENJAMIN KEITH FRANKLIN

Court: TN Court of Criminal Appeals

Attorneys:

Larry G. Roddy, Dayton, Tennessee, for the appellant, Benjamin Keith Franklin.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): GLENN

The Defendant, Benjamin Keith Franklin, was convicted by the Rhea County Circuit Court jury of sexual battery by an authority figure, a Class C felony, and was sentenced to four years and six months in the Tennessee Department of Correction. On appeal, he argues that his conviction violates principles of double jeopardy and the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

franklinb_052220.pdf

COURTNEY KNOWLES v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Courtney Knowles, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Petitioner, Courtney Knowles, appeals from the denial of his petition for post-conviction relief, which challenged his 2012 conviction for rape of a child. In this appeal, Petitioner asserts that his trial counsel was ineffective and that he was denied a full and fair hearing on his post-conviction petition. After a review of the entire record, we conclude that Petitioner was not afforded a full and fair hearing on his petition. Accordingly, we reverse the judgment of the post-conviction court and remand this matter for a new evidentiary hearing. Furthermore, the interests of justice require that under the circumstances of this case, and to insure the public perception of a fair and impartial hearing, the post-conviction proceedings be heard by a different judge than the judge who previously heard the proceedings. In light of our conclusion and disposition in this case, we need not address Petitioner’s claims of ineffective assistance of trial counsel at this time.

knowlesc_052220.pdf

STATE OF TENNESSEE v. JASON BRADLEY WALTERS

Court: TN Court of Criminal Appeals

Attorneys:

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Jody S. Pickens, District Attorney General; and April Knight Cornelison, Assistant District Attorney General, for the appellant, State of Tennessee.

Justin P. Jones, Brownsville, Tennessee, for the appellee, Jason Bradley Walters.

Judge(s): WOODALL

The State appeals as of right from the trial court’s order granting the motion to suppress all evidence obtained as a result of an unconstitutional stop of the vehicle driven by Defendant, Jason Bradley Walters. The basis of the stop was the arresting deputy’s observation that Defendant violated Tennessee Code Annotated section 55-9-407, which requires a driver to dim headlights within 500 feet of an approaching vehicle. In its order, the trial court granted the motion solely based upon its determination that a violation of Tennessee Code Annotated section 55-9-407 is not a crime. On appeal the State argues it is a Class C misdemeanor pursuant to Tennessee Code Annotated section 55-10-301(a), and that the trial court’s judgment should be reversed. On this point, we agree with the State. However, we remand for the trial court to make specific findings of fact based upon the trial court’s credibility determinations of the witnesses, and any other evidence, direct or circumstantial, viewed in light of the trial court’s credibility of the testimony. The trial court must then issue a new order either granting the motion to suppress or denying the motion.

waltersj_052220.pdf

STATE OF TENNESSEE v. JOSEPH WAYNE WETHINGTON

Court: TN Court of Criminal Appeals

Attorneys:

Robert M. Burts, Rutledge, Tennessee, for appellant, Joseph Wayne Wethington.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant Attorney General; Jimmy B. Dunn, District Attorney General; and George C. Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Joseph Wayne Wethington, appeals his Grainger County Circuit Court jury convictions of attempted rape of a child, arguing that the evidence was insufficient to support his conviction, that the trial court admitted certain testimony in violation of Tennessee Rule of Evidence 404(b), and that his sentence was excessive. Discerning no error, we affirm.

wethingtonj_052220.pdf

 

RICARDO WOODS v. BRIAN COOK, WARDEN

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati, Ohio, for Appellant. Hilda Rosenberg, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.

ON BRIEF: Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati, Ohio, for Appellant. Stephanie L. Watson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Judge(s): BATCHELDER, GIBBONS, and SUTTON, Circuit Judges

Court Appealed: United States District Court for the Southern District of Ohio at Cincinnati

SUTTON, Circuit Judge. When Ricardo Woods shot David Chandler in the head, he might have thought that he had silenced him for good. But while paralyzed from the neck down, Chandler retained some movement in his eyelids. In the days before he succumbed to his injuries, Chandler used a system of blinks to identify his assailant. At Woods’ murder trial, the court allowed the State to introduce Chandler’s identification of Woods, holding it an admissible dying declaration. An Ohio jury convicted him, and the state courts affirmed the decision. Woods filed a habeas petition alleging a violation of his Confrontation Clause rights under the Sixth (and Fourteenth) Amendment. He also claimed the court misapplied Batson by not timely requiring the State to offer a race-neutral explanation for a peremptory strike. Because neither of these claims satisfies the strictures of review under AEDPA, we affirm their rejection.

woodsr_052220.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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