TBA Today - Monday, September 14, 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
Monday, September 14, 2020
Today's News

Comments Sought on Reappointment of Federal Public Defender

The U.S. Court of Appeals for the 6th Circuit seeks comments from those who are in a position to evaluate the performance of Henry Martin, federal public defender for the Middle District of Tennessee, as well as the quality of services provided by the public defender’s office. Martin is eligible for reappointment when his current four-year term expires on July 23, 2021. Comments should be submitted by Oct. 23 via email or by mail to Middle District of Tennessee Federal Public Defender Evaluation Committee, c/o Circuit Executive Marc Theriault, 6th Circuit Court of Appeals, 503 Potter Stewart U.S. Courthouse, 100 East Fifth St., Cincinnati, Ohio 45202. Read more in this notice. This past June, Martin was honored with the TBA’s First Annual Claudia Jack Award, which recognizes a public defender or court-appointed lawyer who serves clients in an exemplary fashion.

 
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Lewis Thomason Attorney Co-Hosts New BarBuzz Podcast

Don’t miss the September episode of the TBA BarBuzz podcast with special guest co-host Julia Hale of Lewis Thomason in Nashville. Hale drops in to help highlight important legal news from across the state and give listeners a rundown of bar association events and happenings. BarBuzz is part of the TBA Podcast Network and is available anywhere you listen to podcasts and on the TBA’s website.

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Vick Appointed Newport Municipal Judge

The City of Newport Board of Mayor and Aldermen has appointed local attorney Brittany Wild Vick as the city’s next municipal judge. Vick was chosen over two other candidates, Carty McSween and Assistant District Attorney Joann Sheldon, The Newport Plain Talk reports. The seat had been vacant since the death of Judge Vida Bell. Vick, a graduate of the Nashville School of Law, will maintain her general law practice in Newport in addition to serving as municipal judge. She also is the current vice president of the Cocke County Bar Association.

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Retired Judge Keynotes Rutherford Sept. 11 Ceremony

Retired 16th Judicial District Circuit Court Judge and military veteran Royce Taylor was the keynote speaker Friday at a Sept. 11 ceremony in Rutherford County, the Tennessee Administrative Office of the Courts reports. Taylor served the state as a judge from 1998 to early 2020. During the Vietnam War, he commanded the Quebec Platoon of Navy SEAL Team 1 and received a Bronze Star with a Combat V for his service. Taylor retired from the U.S. Navy Reserve with the rank of captain in 1995. A full video of the ceremony is on the Rutherford County Sheriff’s Office’s Facebook page.

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Oracle Wins Preliminary Deal to Host TikTok’s U.S. Operations

Oracle has reached a preliminary “technical partnership” agreement with ByteDance, the parent company of the video app TikTok, to manage the apps’ U.S. operations, the Nashville Business Journal reports. According to sources close to the negotiation, Oracle out bid Microsoft but the deal does not include a full sale of the app. Oracle reportedly plans to purchase an equity stake in the service and address national security concerns raised by the government. Existing ByteDance investors also are expected to be part of any final deal so talks may be continuing and could change. Any deal also would require the support of the U.S. and Chinese governments.

MyCase Sold to Private Equity Firm for $193 Million

Eight years after it acquired the practice and case management provider MyCase, AppFolio has sold it to the private equity firm Apax Partners for $193 million. The deal is expected to close by the end of the third quarter. Apax Partners says it plans to support MyCase with increased investments in product development, sales and marketing, while maintaining all current employees. The move is the latest in a two-year period that has seen a flurry of activity around practice management software companies. In 2018, Tabs3 acquired CosmoLex to expand its cloud-based practice management tools. In 2019, Litify secured a $50 million investment to expand into the corporate legal and small to mid-sized firm market; Clio secured $250 million in funding; and Bill4Time entered the market, in large part due to an acquisition by PracticePanther. And this past June, Lexicon launched a standalone legal practice management platform. Law.com has the story from Legal Tech News.

 
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LAS to Host 3 Legal Aid Phone Clinics This Week

Legal Aid Society of Middle Tennessee and the Cumberlands will conduct three phone clinics this week for those with questions about housing/renters’ rights, bankruptcy, medical bills, debt collection, domestic violence, SNAP benefits and unemployment. Clinics will take place tomorrow from 3 to 4:30 p.m., Wednesday from 11 a.m. to 1 p.m. and Saturday from 8:30 to 11:30 a.m. CDT. LAS is looking for attorneys to help answer legal questions during these clinics. To volunteer, contact Andrae Crismon or Kendra Cheek or call 615-780-7131. See the list of clinics for all of September.

 
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Federalist Society Memphis Chapter Plans Constitution Day Program for Thursday

The Memphis Lawyers’ Chapter of the Federalist Society will mark this year’s Constitution Day with a Zoom presentation by Northwestern University Pritzker School of Law professor John O. McGinnis on Thursday at 11:50 a.m. CDT. McGinnis will talk about the U.S. Constitution as a legal document. Those interested in attending should register online or contact Memphis lawyer Greg Grisham.

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Vanderbilt Launches Series on Justice, Healing

Vanderbilt University is partnering with Fisk University, the Frist Art Museum and Millions of Conversations (founded by Bass, Barry & Sims lawyer Ali Samar) to host “Engine for Art, Democracy and Justice,” a series of virtual conversations and artistic collaborations focused on healing at a time of significant social unrest. The first installment, “Redefining Monuments,” will be offered on Sept. 23 and 30, followed by “Paths of Emerging Solidarities” on Oct. 7 and 14, “Performativity and the Social Body” on Oct. 21 and Nov. 4, and “Love Transmutation” on Nov. 11 and 18. Sessions will begin at 10 a.m. CDT and are free and open to the public, but advance registration is required. The program also will bring Carrie Mae Weems’ RESIST COVID TAKE 6! public art campaign to Nashville this month. View all details online or contact project manager Raquelle Bostow or fellow Phillip Townsend with questions.

 
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Nashville Lawyer Dies in Kentucky

Nashville lawyer Thomas Irvin Holman Jr. died Aug. 6 in Danville, Kentucky, at the age of 98. A 1943 graduate of the University of Tennessee College of Law, Holman served in the Army, as a partner in the Nashville law firm of Stephenson, Lackey and Holman, and as a faculty member of the YMCA Law School (now the Nashville School of Law). He also earned a bachelor of laws from Emory University in 1947. Holman later was named president of First Federal Savings and Loan Association, CEO of the Metropolitan Federal Savings and Loan Association and president of the Tennessee Savings and Loan League. A private family service will be held at a later date. In lieu of flowers, memorial contributions may be made to Family Services Association of Boyle County or Danville-Boyle County Humane Society.

 
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Litigation Forum on Tap for Thursday

The TBA’s Litigation Law Section will hold its annual forum this Thursday from 9 a.m. to 3:30 p.m. CDT. The program will feature a three-hour live virtual component as well as two exclusive online videos (each lasting one hour) to watch after the event, for a total of four general and one dual CLE hours. Topics for the live portion include federal courtroom practice and procedure, state procedure and application, and a panel discussion on caps on damages. The recorded sessions will focus on the key differences between federal and state appellate practice and pre-suit investigation techniques.

 
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TBA Members Save at Office Depot

Save up to 60% on office supplies through the TBA's Office Depot benefit program! The TBA has partnered with this top national office supply company to offer discounted pricing for law firms large and small.

 
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.

Tennessee Supreme Court DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court

Week of September 8, 2020 - September 11, 2020

certlist_091420.pdf

 

MICHAEL MASK v. HUB GROUP, INC., ET AL.

Court: TN Workers Comp Appeals Board

Attorneys:

Michael Mask, Memphis, Tennessee, employee-appellant, pro se.

David J. Deming, Nashville, Tennessee, for the employer-appellee, Hub Group, Inc.

Judge(s): GODKIN

The employee, a truck driver, suffered an injury to his low back at work. Upon evaluation for his back injury, it was discovered that he had multiple myeloma, which required extensive treatment. The employer provided workers’ compensation benefits for the employee’s low back strain but concluded the employee’s continuing need for treatment was causally related to his cancer instead of his work-related injury. The employee filed a petition seeking to compel the employer to provide additional medical and disability benefits for his low back condition. After a trial, the court concluded the employee had not established an entitlement to temporary disability benefits, permanent disability benefits, or additional medical benefits beyond those made reasonable and medically necessary by the work-related low back strain. The employee has appealed. Having carefully reviewed the record, we affirm the trial court’s order and certify it as final.

maskm_091420.pdf

 

STEPHEN BOESCH v. JAY R. HOLEMAN, ET AL.

Court: TN Court of Appeals

Attorneys:

Stephen Boesch, pro se appellant.

Brian T. Mansfield, Sevierville, Tennessee, for the appellees, Jay Holeman, Richard Fraser, and Crystal Falls Spirits, LLC.

Judge(s): SWINEY

This appeal concerns a disassociated partner’s buyout. Stephen Boesch (“Boesch”), Jay Holeman (“Holeman”), and Richard Fraser (“Fraser”) formed a partnership to start a flavored-moonshine and whiskey business, Tennessee Legend. Boesch contributed technical know-how and labor. Early on, Boesch was disassociated from the partnership. Boesch sued Holeman and Fraser (“Defendants,” collectively) in the Chancery Court for Sevier County (“the Trial Court”) alleging, among other things, misappropriation of trade secrets. Later, Crystal Falls Spirits, LLC, an entity created by Holeman, intervened to sue Boesch. At trial, the parties put on competing proof as to the value of Boesch’s interest. Ultimately, the Trial Court adopted Defendants’ value and rejected Boesch’s trade secrets claim. Boesch appeals. Because the experts failed to contend with Tenn. Code Ann. § 61- 1-701, which governs the determination of a disassociated partner’s buyout price when a partnership is not dissolved, we reverse and remand for a new determination in keeping with the statute’s requirements. Otherwise, we affirm the Trial Court’s judgment. We, therefore, affirm in part, and reverse, in part, and remand for further proceedings consistent with this Opinion.

boeschs_091420.pdf

IN RE BRAYLA T.

Court: TN Court of Appeals

Attorneys:

Bradley D. Sherman, Winchester, Tennessee, for the appellant, Joshua T.

Sandra I. Schefcik, Estill Springs, Tennessee, guardian ad litem.

Glen A. Isbell, Winchester, Tennessee, for the appellees, Cody M. and Elizabeth M.

Judge(s): FRIERSON

In this termination of parental rights action, the father has appealed the trial court’s final order terminating his parental rights to the minor child, Brayla T. (“the Child”) based on several statutory grounds. The mother and the stepfather filed a petition to terminate the father’s parental rights and to allow the stepfather to adopt the Child after the juvenile court adjudicated the Child dependent and neglected as to the father. The trial court found that statutory grounds existed to terminate the father’s parental rights upon its determination by clear and convincing evidence that the father had abandoned the Child by willfully failing to visit the Child and had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Child. The trial court also found clear and convincing evidence of two statutory grounds applicable solely to putative fathers. The trial court further found by clear and convincing evidence that it was in the Child’s best interest to terminate the father’s parental rights. The father has appealed. Having determined that the evidence presented at trial did not support a finding by clear and convincing evidence that the father was a putative father, we reverse as to those two statutory grounds applicable only to putative fathers. We affirm the trial court’s judgment in all other respects, including the termination of the father’s parental rights.

braylat_091420.pdf

 

DAVID VON BROWN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Vicki M. Carriker, Memphis, Tennessee, for the Appellant, David Von Brown.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant Attorney General; Jody S. Pickens, District Attorney General; Al Earls, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): MONTGOMERY

The Petitioner, David Von Brown, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief from his convictions for possession of 0.5 gram or more of cocaine with intent to sell, possession of 0.5 gram or more of cocaine with intent to deliver, two counts of possession of a firearm during the commission of a dangerous felony, two counts of possession of a firearm during the commission of a dangerous felony by a person having a prior felony conviction, and being a felon in possession of a firearm, and the effective seventeen-year sentence.1 On appeal, the Petitioner contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claims. We affirm the judgment of the post-conviction court.

brownd_091420.pdf

STATE OF TENNESSEE v. SCOTT A. BROWN

Court: TN Court of Criminal Appeals

Attorneys:

Craig P. Fickling, District Public Defender; and Tyler W. Lannom (on appeal), and Jennifer M. Kollstedt (at hearing), Assistant Public Defender, for the appellant, Scott A. Brown.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Jackson W. Carter and Mark Edward Gore, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): GLENN

The Defendant, Scott A. Brown, pled guilty to one count of statutory rape, a Class E felony, and one count of possession of more than .5 grams of methamphetamine with intent to sell, a Class B felony, in exchange for an effective sentence of eight years in the Department of Correction. Following a hearing to determine whether the Defendant should be placed on the sex offender registry, the trial court ordered that the Defendant be placed on the registry, which decision the Defendant now appeals. After review, we affirm the judgments of the trial court.

browns_091420.pdf

STATE OF TENNESSEE v. KIMBERLY REED

Court: TN Court of Criminal Appeals

Attorneys:

Andrew J. Gibbons, District Public Defender; and Ashley D. Boyer, Assistant Public Defender, for the Appellant, Kimberly Reed.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Barry P. Staubus, District Attorney General; and Emily Smith (at furlough hearing) and Michael Filetti (at sentencing hearing), Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): THOMAS

The Defendant, Kimberly Reed, pled guilty to forgery, a Class E felony; identity theft, a Class D felony; theft of property valued at $2,500 or more but less than $10,000, a Class D felony; theft of property valued at $1,000 or more but less than $2,500, a Class E felony; theft of property valued at less than $1,000, a Class A misdemeanor; attempted misdemeanor theft, a Class B misdemeanor; fraudulent use of a credit card, a Class A misdemeanor; criminal impersonation, a Class B misdemeanor; and criminal trespass, a Class C misdemeanor. See Tenn. Code Ann. §§ 39-12-101, -14-103, -14-114, -14-118, - 14-150, -14-405, -16-301. The trial court imposed a total effective sentence of ten years in confinement. On appeal, the Defendant contends that the trial court abused its discretion by denying alternative sentencing. Following our review, we affirm.

reedk_091420.pdf

STATE OF TENNESSEE v. EDWARD WALSH

Head Comment: CORRECTION: The following sentence was removed from the top of page 14 of the opinion, "Consequently, we will look to see if the trial court's failure to merge the convictions constitutes plain error."

Court: TN Court of Criminal Appeals

Attorneys:

Craig P. Fickling, District Public Defender and Benjamin D. Marsee, Assistant Public Defender (at trial), M. Todd Ridley, Assistant Public Defender (on appeal), for the appellant, Edward Walsh.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Mark E. Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): EASTER

In October of 2015, Defendant, Edward Walsh, was indicted by the Clay County Grand Jury for first degree murder, abuse of a corpse, tampering with evidence, and theft of property. The theft of property charge was severed, and the tampering with evidence charge was nolled before trial. After a jury trial, Defendant was found guilty of first degree murder and abuse of a corpse. The trial court sentenced Defendant to life imprisonment for the murder conviction and a concurrent two-year sentence for the abuse of a corpse conviction. On appeal, Defendant argues that the trial court erred in not severing the offenses of first degree murder and abuse of a corpse, that the trial court erred in admitting hearsay, that the trial court was not impartial, that the State’s closing argument was based on inferences from facts not in evidence, and that evidence was insufficient to prove first degree murder. After a thorough review of the record, we affirm the judgments of the trial court.

walshe_COR_091420.pdf

 

UNITED STATES OF AMERICA v. DANE SCHRANK

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ON BRIEF: Debra L. Ireland, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant.

ON BRIEF: Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellee.

Judge(s): BATCHELDER, DONALD, and THAPAR, Circuit Judges

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

THAPAR, Circuit Judge. We have seen this case before. Dane Schrank visited the dark web and downloaded “nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.” United States v. Schrank, 768 F. App’x 512, 515 (6th Cir. 2019). After a government investigation identified Schrank, he confessed and pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).

We now do just that. Because Schrank’s sentence remains substantively unreasonable, we vacate it and remand for resentencing. And given the district judge’s conduct, we order that the case be reassigned on remand.

schrankd_091420.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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