TBA Today - Friday, July 31, 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, July 31, 2020
Today's News

Shelby Criminal Courts Suspend Jury Trials

Shelby County Criminal Court judges yesterday ordered the indefinite suspension of criminal jury trials citing the impossibility of impaneling a jury that “would satisfy health and safety guidelines and comply with relevant constitutional provisions.” The order negates prior plans to lift the suspension in September, the Commercial Appeal reports. The judges said they will “continue to evaluate the current conditions and assess any updated guidance from health authorities to determine when jury trials can resume.” The Tennessee Association of Criminal Defense Lawyers expressed concern about the decision saying judges should have considered the group’s input before moving forward. The court said it consulted with the public defender's office, district attorney's office and National Association of Criminal Defense Lawyers.


DA Says ‘New Evidence’ Not from Payne Case

The Shelby County District Attorney’s Office is asking the court to deny a request for DNA testing in the death penalty case of Pervis Tyrone Payne, who is set to be put to death on Dec. 3. Payne's attorneys had petitioned the court for the testing hoping newly discovered evidence would reverse his conviction. But District Attorney Amy Weirich said this week that the evidence — including bedsheets, a comforter and a pillow, all soaked in blood — was actually from an entirely different crime, the Commercial Appeal reports. "There is no new evidence …" Weirich said. "The property room made a mistake. These items have nothing to do with Pervis Payne and should not have been shown” to his attorneys. Payne’s attorneys argue the items should be tested anyway to confirm which case they belong to.

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MBA Director Announces Retirement

In an email message to members, Memphis Bar Association Executive Director Anne Fritz announced her retirement effective today. In the message, Fritz thanked “all the officers, board members, committee and section leaders, and members” for their dedication, hard work and commitment to the association. She also noted she was especially proud of the MBA’s commitment to pro bono and creation of the Summer Law Intern Program for diverse high school students. Her new contact information is 1350 Concourse Ave., Apt. 1051, Memphis, TN 38103, 901-409-3477, clarissafritz@att.net. The MBA Executive Committee said it will announce an interim executive director soon to serve until a permanent replacement is selected.

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Waller Names New Healthcare Restructuring Team Leader

Waller recently announced that John Tishler will lead the firm’s Healthcare Restructuring Team during a critical time for the healthcare industry, which is facing challenges from the COVID-19 pandemic and resulting economic downturn. The team includes representatives from the firm's regulatory, M&A, corporate, real estate, litigation, tax, labor and employment, finance and intellectual property practice groups. Tishler has worked as an insolvency and restructuring attorney for more than 30 years. He also served as the firm’s chair from 2008 to 2014.

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Justice Breyer Encourages Dialogue to End Divisions

At this week’s virtual ABA Annual Meeting, U.S. Supreme Court Justice Stephen Breyer shared insights on an array of topics, including what he considers to be the biggest threat to the rule of law: the current political divisions in the country. “Convince other people. Talk to them. Don’t shout at them. And convince them you’re right … And if you can’t convince people this time, maybe you will next time.” He also said he is optimistic for the future because the country has experienced "slavery, a civil war and a legal system of segregation" but has overcome them all and will continue to overcome new challenges. Read more about his comments or watch the interview with ABA President Judy Perry Martinez. Also during the meeting, the ABA presented its highest honor to former ABA president and World Justice Project founder William Neukom. Earlier in the day, Neukom led a discussion with Microsoft Corp. co-founder Bill Gates on the nation’s response to COVID-19 and recent protests around racial injustice.

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ABA Resolution Urges Cancellation of In-Person Bar Exams

About half of jurisdictions in the country administered in-person bar exams this week, and at least one, Colorado, reported that a participant has tested positive for COVID-19. A resolution to be considered by the ABA House of Delegates next week would urge states to abandon plans for in-person exams during the pandemic, Law.com reports. In related news, those states that have opted for online exams face another threat. Michigan’s online bar exam recently was delayed when its software provider experienced a cyberattack described as “a sophisticated attack specifically aimed at the login process.” No data was compromised in the attack, an ExamSoft representative said, but some test-takers were rattled as the delay occurred after the exam had started. The Michigan Board of Law Examiners said it plans to investigate whether the attack had an impact on test-takers and report findings to the state Supreme Court. The ABA Journal has more on the story.

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Memphis Judges Keep Bars Closed

A ruling from U.S. District Judge John T. Fowlkes Jr. ended the hopes of limited-service restaurants in Memphis that wanted a reprieve from orders closing inside service, the Daily Memphian reports. The ruling mirrors one issued earlier in the week by U.S. District Judge Jon P. McCalla. While both judges recognized the closure has a profound economic impact on these businesses, they did not find sufficient reason to justify a temporary restraining order. As Fowlkes wrote, “The Court recognizes the many hardships imposed by Health Order No. 8. However, Defendants’ decision to temporarily close Plaintiffs is legally sound. What is legal may not always be fair, but legality must prevail over fairness.”

Husch Blackwell Launches Virtual 'Office' Amid Pandemic

Husch Blackwell has opened its 21st office — a virtual space called The Link, comprised of 50 lawyers and staff from eight brick-and-mortar offices in a move that transforms the firm’s approach to how it uses technology and views office space. The managing partner of The Link said the experience of remote work may affect space planning and the firm's real estate commitment. Read more about the experiment from Law.com.

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KBA to Hold Virtual Veterans' Legal Clinic

The Knoxville Bar Association will hold a virtual Legal Advice Clinic for Veterans on Aug. 12 from noon to 2 p.m. EDT. This will be a general advice clinic that will cover a wide variety of legal issues, including family law, landlord/tenant, bankruptcy, criminal defense, consumer protection, contract disputes, child support and personal injury. Volunteers are needed. Sign up here to participate or contact Tracy Chain at tchain@knoxbar.org with any questions. View a flyer for the event.

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New Roundtable Focuses on Virtual Law Firms

As more legal professionals work from home and on the road, the high overhead and inflexibility of traditional office space becomes less and less appealing. Enter the virtual law firm: an alternative practice model that offers new possibilities for firms and clients. Join colleagues on Aug. 12 at 1 p.m. CDT for a free one hour roundtable to learn what a virtual law firm is, how it works and how to get started. Nefra MacDonald with Clio will lead the discussion. RSVP by 11 a.m. CDT the day of the event to receive login details. Questions may be submitted in advance to Jennifer Vossler. Use subject line “Clio.”

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Time Miner Makes Billing Simple

Time Miner is a retroactive time capture tool that automatically creates time entries for calls, texts and emails. It is compatible with Android and iOS, and currently integrates with Clio, Gmail, Outlook and RingCentral. All information and data collected by Time Miner is stored locally and is accessible only on the user's device. Time Miner uses bank-grade encryption and security to keep data safe and accessible. TBA members receive a 30% lifetime discount. Email sales@timeminerapp.com for the member discount code.

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.


Court: TN Court of Appeals


Joseph P. Bednarz, Jr., Hendersonville, Tennessee, for the appellant, Barry Charles Blackburn ex rel. Briton B.

Robert L. Trentham, Taylor B. Mayes, and James A. Beakes, III, Nashville, Tennessee, for the appellee, Maury Regional Hospital d/b/a/ Maury Regional Medical Center.

Marty R. Phillips and Michelle Greenway Sellers, Jackson, Tennessee, for the appellee, Mark A. McLean, M.D.

Judge(s): CLEMENT

This is a wrongful death healthcare liability action against two defendants, a hospital and an emergency room physician. Following extensive discovery and scheduling orders, the physician defendant filed a motion for summary judgment, and the hospital joined in the motion. The trial court granted each defendant partial summary judgment by dismissing 17 claims alleging the defendants breached standards of care. When the hospital filed its motion to summarily dismiss the remaining claims against it, the plaintiff filed a response and a motion to substitute his physician expert witness for a different expert witness. The defendants opposed the motion, and the trial court denied the motion to substitute the plaintiff’s expert witness. The court also summarily dismissed all remaining claims against the hospital, leaving only the claims against the emergency room physician for trial. Upon motion of the plaintiff, the court certified the summary dismissal of all claims against the hospital as a final judgment pursuant to Tenn. R. Civ. P. 54.02. This appeal followed. We have determined that the trial court erred in certifying the order as a final judgment under Tenn. R. Civ. P. 54.02 because, inter alia, any decision we make regarding the adjudicated claims against the hospital may encroach upon the unadjudicated claims to be tried against the emergency room physician. Moreover, there is no basis upon which to conclude that an injustice may result from the delay in awaiting adjudication of the entire case. Therefore, there is a just reason for delaying the expedited appeal of the summary dismissal of all claims against the hospital. Accordingly, we vacate the trial court’s order certifying the judgment as final under Rule 54.02 and remand for further proceedings.



Court: TN Court of Appeals


Lance B. Mayes, Brentwood, Tennessee, for the appellant, William Michael Cothron.

Paul W. Moser, Nashville, Tennessee, for the appellee, Amanda Paige Ryan-Cothron.

Judge(s): DINKINS

This appeal arises from a petition filed by a former wife alleging that the former husband breached their marital dissolution agreement. Wife sought $10,000 in damages to property that husband had allegedly damaged in the manner in which the property was stored. The trial court awarded Wife $7,820 in damages. Husband appeals, asserting that the court erred in adopting the values stated in the marital dissolution agreement in assessing Wife’s damages and in not holding that Wife failed to mitigate her damages. Wife asserts that she was entitled to attorney’s fees in accordance with the enforcement provision of the MDA. We affirm the award of damages and reverse the denial of Wife’s application for attorney’s fees.




Court: TN Court of Criminal Appeals


Roosevelt Bigbee, Jr., Henning, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Assistant Attorney General, for the appellee, State of Tennessee.

Judge(s): MCMULLEN

The Petitioner, Roosevelt Bigbee, Jr., appeals the denial of his petition for writ of habeas corpus. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.



Court: TN Court of Criminal Appeals


Jasmine McMackins Hatcher, McKenzie, Tennessee, for the appellant, Larry Donnell Golden, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine K. Decker, Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Carthel L. Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Petitioner, Larry Donnell Golden, Jr., appeals from the denial of his petition for postconviction relief from his 2016 convictions for second degree murder and reckless endangerment. Petitioner contends that he received the ineffective assistance of counsel at trial and on direct appeal. Following our review of the record, we affirm the denial of the petition.



Court: TN Court of Criminal Appeals


Gerald L. Melton, District Public Defender, and Billie I. Zimmerman, Assistant District Public Defender, Murfreesboro, Tennessee, for the appellant, Jonathan Montgomery.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Jennings H. Jones, District Attorney General; and Brent Pierce, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HOLLOWAY

A Rutherford County jury convicted Defendant, Jonathan Montgomery, of driving under the influence (“DUI”) per se, DUI with blood alcohol content over .08 percent, DUI, sixth offense, and driving on a revoked license. The trial court sentenced Defendant to three years with a thirty percent release eligibility for DUI and to a concurrent sentence of six months for driving on a revoked license. On appeal, Defendant contends the evidence presented at trial was insufficient to support his convictions. Following a thorough review, we affirm the judgments of the trial court.



Court: TN Court of Criminal Appeals


Noel H. Riley, II, Dyersburg, Tennessee, for the appellant, Edward Powell.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Danny Goodman, District Attorney General; and Tim Boxx, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Edward Powell, appeals his Dyer County Circuit Court jury conviction of the sale of cocaine, challenging the sufficiency of the convicting evidence. Discerning no error, we affirm.



Court: TN Court of Criminal Appeals


Kari Weber (at trial and on appeal), Somerville, Tennessee, for the Appellant, Kenneth D. Rudd Sr.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Mark Edward Davidson, District Attorney General; and Falen Chandler and Raven Icaza, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge(s): OGLE

A Fayette County Circuit Court Jury convicted the Appellant, Kenneth D. Rudd Sr., of rape and incest. The Appellant was sentenced as a Range II, multiple offender to a total effective sentence of seventeen years in the Tennessee Department of Correction. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his convictions and the length of the sentences imposed by the trial court. Upon review, we affirm the judgments of the trial court.



Court: TN Court of Criminal Appeals


Terry J. Leonard, Camden, Tennessee, for the Defendant-Appellant, Mary Ann Scates.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant Attorney General; Jody Pickens, District Attorney General; and Christopher Post, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

A Henderson County Grand Jury indicted the Defendant-Appellant, Mary Ann Scates, with alternating counts of driving under the influence and driving under the influence (second offense) (counts 1 and 2); following another vehicle too closely and speeding (counts 3 and 4); reckless aggravated assault by use of an automobile as a deadly weapon causing Faith Coleman, Cassandra Coleman, and Alexandria Springer to fear and suffer bodily injury (counts 5, 6, and 7); and vehicular assault of Grace Coleman by reckless operation of an automobile as a result of intoxication (count 8). See Tenn. Code Ann. §§ 55-10-401; 55- 8-124; 55-8-152; 39-13-102; 39-13-106. The Defendant entered an open guilty plea to the offenses as charged, with the trial court to determine sentencing. After a hearing, the trial court imposed a four-year consecutive term of imprisonment for the reckless aggravated assault in count 5 and the vehicular assault by intoxication in count 8, for an effective sentence of eight years’ confinement. The remaining counts were to be served concurrently. The sole issue presented for our review is whether the trial court erred in ordering consecutive sentencing. Following our review, we affirm the judgments of the trial court.



Court: TN Court of Criminal Appeals


Shae Atkinson, Memphis, Tennessee, for the appellant, Jamie Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Defendant, Jamie Thomas, appeals as of right from the Shelby County Criminal Court’s denial of his motion under Tennessee Rule of Criminal Procedure 36.1 as amended to correct illegal sentences. Defendant contends that the trial court erred by concluding that relief was not available because his illegal sentence as to Case Nos. 06-09288 and 06- 08706 had expired and thus was not subject to correction under Rule 36.1. After a thorough review of the record and applicable law, we affirm the judgment of the trial court as to Case Nos. 06-09288 and 06-08706, but as to allegations that concurrent sentencing in Case Nos. 06-02344 and 06-04638, which the trial court did not address, the amended motion is remanded to the trial court for disposition.



Court: TN Court of Criminal Appeals


Harvey Lee Webster, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Petitioner, Harvey Lee Webster, appeals the trial court’s summary dismissal of his motion filed pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleges that his sentences are illegal because his concurrent sentences had to run consecutively because he was on probation at the time of the offenses. After a thorough review, we affirm the judgment of the trial court.



KAREN DOWNARD, Administrator for the Estate of Tye L. Downard v. RUSSELL L. MARTIN, et al., AMY FOLEY; DANIEL WALLACE

Court: 6th Circuit Court (Published Opinions)


ON BRIEF: Daniel T. Downey, Angelica M. Jarmusz, FISHEL DOWNEY ALBRECHT & RIEPENHOFF LLP, New Albany, Ohio, for Appellants.

ON BRIEF: Samuel H. Shamansky, SAMUEL H. SHAMANSKY CO., L.P.A., Columbus, Ohio, for Appellee.

Judge(s): SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges

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

JULIA SMITH GIBBONS, Circuit Judge. After nearly two decades as a detective for the City of Reynoldsburg Police Department, Tye L. Downard (“Tye”) was arrested and charged with a federal drug trafficking offense. While awaiting a preliminary hearing, Tye committed suicide in his cell at the Delaware County Jail. Karen Downard (“Downard”), the administrator of Tye’s estate, filed suit in the Southern District of Ohio, naming, among others, Officer Amy Foley and Officer Daniel Wallace as defendants. In her complaint, Downard asserts federal claims pursuant to 42 U.S.C. § 1983 for deliberate indifference to Tye’s serious medical need and state-law claims for wrongful death and survival. The district court denied summary judgment to Foley and Wallace, finding that neither was entitled to federal qualified immunity or immunity under Ohio law. They appeal those decisions. Because the facts and inferences as found by the district court do not, as a matter of law, show that Foley or Wallace was aware that Tye posed a “strong likelihood” of attempting suicide, we reverse.


FRED ROBINSON, JOHNNY GIBBS, and ASHLEY SPRAGUE, on behalf of themselves and all others similarly situated v. JEFF LONG, Commissioner of the Tennessee Department of Safety and Homeland Security, in his official capacity.

Court: 6th Circuit Court (Published Opinions)


ON PETITION FOR REHEARING EN BANC: Claudia Wilner, Edward P. Krugman, NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, New York, New York, Jonathan Cole, Matthew G. White, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, Memphis, Tennessee, Tara Mikkilineni, CIVIL RIGHTS CORPS, Washington, D.C., for Appellees.

ON RESPONSE: Alexander S. Rieger, Andrew B. Campbell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant.

Judge(s): COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges

Court Appealed: On Petition for Rehearing En Banc United States District Court for the Middle District of Tennessee at Nashville

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.



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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