TBA Today - Tuesday, September 15, 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
Tuesday, September 15, 2020
Today's News
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YLD Podcast: Lewisburg Attorney Talks Big Cases, Gubernatorial Race

Longtime Lewisburg attorney Walter Bussart speaks to former TBA Young Lawyers Division President Troy Weston and his own daughter, Marshall County Judge Lee Bussart, in a new episode of the TBA YLD Presents: War Stories. Bussart discusses memorable moments from his storied legal career, gives advice for young lawyers and dishes on what was going on behind the scenes during his 1994 gubernatorial primary run — a race that saw him first running in the Democratic primary and later endorsing the Republican candidate, Don Sundquist. War Stories is part of the TBA Podcast Network and can be found anywhere you listen to podcasts or on the TBA’s website.

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Wyrick Investiture Ceremony Canceled Due to Pandemic

The investiture ceremony that was to be held for U.S. Magistrate Judge Cynthia Wyrick has been canceled due to ongoing health challenges facing the nation. Wyrick, a former TBA president, was named a federal magistrate judge last September and serves the court’s Northeastern Division, which is based in the federal courthouse in Greeneville. Her investiture ceremony, originally scheduled for April, was rescheduled for October before ultimately being cancelled in light of the COVID-19 pandemic.

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Article Looks at Judge Tim Irwin’s Path From NFL to Juvenile Court

In an article today, the Administrative Office of the Courts tells us about Judge Tim Irwin and his unlikely path to becoming a juvenile court judge in Knox County. Irwin, who played football for the University of Tennessee, was already accepted into law school when he was scooped up by the Minnesota Vikings in the third round of the NFL draft. Never giving up the dream of a legal career, Irwin took night classes at a Minnesota law school while still in the NFL, ultimately transferring to UT College of Law and earning his law degree in 1990. Several years into private practice, Irwin quickly recognized how impressed he was with juvenile court judges. “I became fascinated by that,” Irwin said. “I thought if I ever had the chance to go for that career, it would be really fulfilling.” Read more on Irwin’s time with the NFL and his new position as president of the Tennessee Council of Juvenile & Family Court Judges.  

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Legislative Leaders Say Extra Step Needed to Remove Bedford Forrest Bust

Lieutenant Gov. Randy McNally, R-Oak Ridge, and House Speaker Cameron Sexton, R-Crossville, yesterday said they believe there is an additional step that must be taken before the controversial Nathan Bedford Forrest bust can be removed from the State Capitol, the Tennessean reports. The State Capitol Commission in July voted in favor of removing the bust and the matter was set to be heard by the Tennessee Historical Commission for a final vote in October. But, in a letter to state architect Ann McGauran, McNally and Sexton wrote that the Historical Commission cannot vote on the removal of the bust until it is also approved by the State Building Commission. The lawmakers point to a section of state law that says actions of the Capitol Commission “shall be subject to the concurrence of the state building commission." McNally and Sexton are both members of the Building Commission. Gov. Bill Lee’s office maintains that proper protocol has been followed, but is reviewing the letter from the speakers.

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Murfreesboro Attorney Wanted on Rape Charges Kills Self When Confronted by Officers

A Rutherford County attorney wanted by authorities for skipping court after being indicted on rape charges killed himself last week after being confronted by officers, the Daily News Journal reports. David Whelan, 49, missed a scheduled court appearance last week on charges of rape and kidnapping involving his clients and teen babysitter. Whelan was also set to appear before Judge David Bragg on Oct. 1 for various charges including aggravated rape, statutory rape by an authority figure, promoting prostitution, aggravated sexual battery and more. The Tennessee Bureau of Investigation said in June that after an investigation, it was found that Whelan “forced or coerced female clients into sex as a way to re-pay their attorney fees.” He was briefly put on the TBI’s Most Wanted list before he was located in Mobile, Alabama, on Thursday. When officers went to confront Whelan, he reportedly produced a weapon and shot himself.

Virtual Equal Justice University Focused on Resilient Justice

The Tennessee Alliance for Legal Services (TALS) last week hosted its annual Equal Justice University (EJU) as a two-day virtual event. The theme of this year’s conference was “Resilient Justice: Building Resilience, Ensuring Justice.” More than 300 lawyers, law students and other advocates attended sessions. TALS also shared videos celebrating its 2020 Access to Justice award winners. The Tennessee Bar Association co-sponsored the event and hosted a virtual sponsor booth with a video welcome from TBA President Michelle Greenway Sellers and a video tribute to the 2020 TBA Public Service Award winners.


Hargett: Full Results by End of Election Day Would Be ‘Surprise’

Secretary of State Tre Hargett recently told reporters that it will be a surprise if full voting results are available by the end of Election Day, the Tennessee Journal reports. “We’re going to see a spike in absentee ballots. I don’t know how heavy that will be,” Hargett said. “I hope I’m pleasantly surprised like I was in August, when 95 counties had their election results done by midnight.” Early voting runs from Oct. 14 until Oct. 29 and the deadline to request an absentee ballot is Oct. 27. Absentee ballots must be received by Election Day to count.

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Rights Groups Amend Lawsuit Against Shelby Asking for Release of Detainees

The American Civil Liberties Union of Tennessee, Just City and several attorneys today filed an amended complaint in federal court, building on a class action suit that calls for the release of “medically vulnerable” detainees from the Shelby County jail, the Commercial Appeal reports. The initial suit requested the release of around 300 detainees who are over 65 or have certain chronic conditions. The complaint alleges Shelby County has “utterly failed” to comply with Federal Judge Sheryl Lipman’s August order to remedy jail conditions that are rife with the risk of infection. The amended complaint states that "wholly ineffective" quarantine practices, non-testing of new arrestees and the failure to "seriously pursue" social distancing in sleeping quarters and during meals, pill calls, and while detainees use the phone has perpetuated risk of COVID-19 exposure. As of Sept. 11, nearly 240 detainees have contracted the virus at the jail. 

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Nashville Conflict Resolution Center to Host ‘Legacy of Trauma’ Event

The Nashville Conflict Resolution Center will host “Legacy of Trauma: The Impact of Historical Trauma on African Americans” on Thursday and Friday from 9 until 11 a.m. CDT. The event is a two-day learning session that will provide a compelling overview of social history, trauma theory and the interventions that can build resilience and healing for all members of our society in conflict. Register for the program here.

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LMU Law Review Seeks Content Relevant to Appalachian Region

Lincoln Memorial University Law Review is inviting all attorneys who are writing and speaking on topics relevant to the Appalachian region of the United States to submit an article to its publication. LMU’s Law Review was established in 2010 and is an online publication with a print version available on-demand. To submit an article, contact lmulawreview@lmunet.edu.

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Creditors Practice Forum to Feature Judicial Panel, Legal Tech Update

The 2020 Creditors Practice Annual Forum will be held virtually on Sept. 30 from 1 to 4 p.m. CDT and will offer attendees the chance to earn two general and one dual CLE hours. Judge Lynda Jones and Judge Phyllis Gardner will kick off the program with a judicial panel that will be followed by a discussion on the future of collections and bankruptcy and an update on legal technology. You must register before 11 a.m. CDT on Sept. 30 to receive the Zoom email invitation.   

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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.


Court: TN Court of Appeals


Agness McCurry, Johnson City, Tennessee, pro se appellant.

Donna Michael Hall Bolton, Johnson City, Tennessee, for the appellee, Benjamin McCurry.

Judge(s): SWINEY

The Notice of Appeal filed by the appellant, Agness McCurry, stated that the appellant was appealing the judgment entered on August 17, 2020. As the August 17, 2020 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.



Court: TN Court of Appeals


Brent E. Siler and S. Keenan Carter, Memphis, Tennessee, William Davis Frye, Ridgeland, Mississippi, for the appellant, Allenbrooke Nursing and Rehabilitation Center, LLC.

Phillip Nathaniel Harvey and Parke S. Morris, Memphis, Tennessee, for the appellee, Tkach Stokes.

Judge(s): GOLDIN

In this health care liability action, the defendant moved to compel arbitration based upon an agreement entered into between the parties that provided for binding arbitration. The plaintiff opposed the defendant’s motion, taking specific umbrage at a provision in the parties’ agreement that indicated the expenses of arbitration would, by default, be subject to a 50/50 split. Contending that he was unable to pay for arbitration expenses, the plaintiff opposed enforcement of the arbitration agreement by advancing a cost-based unconscionability defense. Although the defendant acted to relieve the plaintiff of this asserted burden by offering to pay for the costs of arbitration, the trial court held that the subject fee-splitting provision in the agreement was unconscionable and denied the motion to enforce the agreement and compel arbitration. For the reasons stated herein, while we agree with the trial court that, under the facts of this case, the fee-splitting provision was unconscionable, we hold that the trial court erred in denying the defendant’s motion to compel arbitration.




Court: TN Court of Criminal Appeals


Jay Umerley, Nashville, Tennessee (on appeal) and Nicholas McGregor, Nashville, Tennessee (at trial) for the appellant, L. Clay Shuler, II.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Ronald Dowdy and Addie Askew, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Defendant, L. Clay Shuler, II, was convicted of first degree premeditated murder, tampering with evidence, and setting fire to personal property or land. The trial court imposed a sentence of life for first degree murder, six years for tampering with evidence, to be served consecutively to the life sentence, and a concurrent two-year sentence for setting fire to personal property. On appeal, Defendant argues that the evidence was insufficient to support his convictions. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court.




Court: 6th Circuit Court (Published Opinions)


ON PETITION FOR REHEARING EN BANC: Fadwa A. Hammoud, Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON RESPONSE: Tasha J. Bahal, Reuven Dashevsky, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston, Massachusetts, for Appellant.

Judge(s): COLE, Chief Judge; STRANCH and READLER, Circuit Judges

Court Appealed: On Petition for Rehearing En Banc United States District Court for the Western District of Michigan at Grand Rapids

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. Judge Readler would grant rehearing for the reasons stated in his dissent.



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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