Judge: Tennessee Can’t Revoke Licenses of People Who Can’t Pay Traffic Fines

A federal judge ruled yesterday that Tennessee can no longer revoke people’s driver licenses because they cannot pay traffic tickets, The Commercial Appeal reports. U.S. District Judge Aleta Trauger issued the ruling in a class-action suit that could affect as many as 291,000 people. Trauger found that the suspensions did nothing to ensure people paid their debt, and said that the state didn’t offer any reason in their arguments that taking an indigent person’s license is an effective means to ensure debt collection. Hundreds of thousands of Tennesseans now have the right to seek reinstatement of their licenses.

Today’s Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

00 – TN Supreme Court
00 – TN Workers Comp Appeals
00 – TN Workers Comp Appeals Board
00 – TN Supreme Court – Rules
01 – TN Court of Appeals
07 – TN Court of Criminal Appeals
00 – TN Attorney General Opinions
00 – Judicial Ethics Opinions
00 – Formal Ethics Opinions – BPR
00 – TN Supreme Court – Disciplinary Orders
01 – 6th Circuit Court (Published 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.

TN Court of Appeals

RICKY L. BOREN, ET AL. v. HILL BOREN, P.C., ET AL.

Court: TN Court of Appeals

Attorneys:

T. Robert Hill, Jackson, Tennessee, for the appellant, Hill Boren, P.C.

Tamara Hill, Jackson, Tennessee, for the appellant, T. Robert Hill. Lewis L. Cobb and Teresa A. Luna, Jackson, Tennessee, for the appellees, Ricky L. Boren on behalf of Hill Boren, P.C.; Ricky L. Boren; and Jeffrey P. Boyd.

Judge(s): SWINEY

T. Robert Hill (“Hill”) and Hill Boren, P.C. (collectively “Defendants”) appeal the November 6, 2017 order of the Chancery Court for Madison County (“the Trial Court”) finding Defendants in civil contempt. Defendants raise multiple issues regarding whether Defendants received proper notice, whether damages may be awarded absent a finding of willful contempt, whether the Trial Court erred in awarding damages pursuant to Tenn. Code Ann. § 29-9-104, and whether the Trial Court erred in allowing Plaintiffs access to corporate documents. We find and hold that Defendants received sufficient notice, that damages may not be awarded absent a finding of willful contempt, that the Trial Court did not err in awarding damages pursuant to Tenn. Code Ann. § 29-9-104 for the willful failure to turn over a computer server, and that the Trial Court did not err in allowing access to corporate documents. We, therefore, vacate the awards of damages for failure to turn over the copy machine and failure to turn over the Copitraks. We affirm the Trial Court’s holding Defendants in civil contempt with regard to the failure to turn over the server and awarding damages for this contempt. The remainder of the Trial Court’s order is affirmed.

borenr_101718.pdf

TN Court of Criminal Appeals

STATE OF TENNESSEE v. TONY ARNELL BRITTON

Court: TN Court of Criminal Appeals

Attorneys:

Tony Arnell Britton, Nashville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): GLENN

The pro se Defendant, Tony Arnell Britton, appeals from the trial court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After thorough review, we affirm the judgment of the trial court.

brittont_101718.pdf

DEVON BROWN v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ernest J. Beasley, Memphis, Tennessee, for the appellant, Devon Brown.

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

Judge(s): WITT

The petitioner, Devon Brown, appeals the denial of his petition for post-conviction relief, which petition challenged his 2012 convictions of first degree murder, attempted first degree murder, aggravated assault, employing a firearm during the commission of a dangerous felony, and reckless endangerment, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post- conviction relief.

brownd_101718.pdf

TERRY CARAWAY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Mark A. Renken, Memphis, Tennessee (on appeal) and Seth Seagraves, Memphis, Tennesseee (at trial) for the appellant, Terry Caraway.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Austin Scofield, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WOODALL

Petitioner, Terry Caraway, was indicted by the Shelby County Grand Jury for first degree premeditated murder, felony murder, and aggravated burglary. On December 15, 2004, Petitioner pleaded guilty to first degree premeditated murder, and the remaining counts were dismissed. The trial court sentenced Petitioner to life imprisonment. On May 12, 2015, Petitioner filed a pro se motion to toll the post-conviction statute of limitations, claiming that he was mentally incompetent and that he was unable to understand the law and comply with the statute of limitations, and a pro se post-conviction petition, alleging that his guilty plea was involuntary. Petitioner was appointed counsel, and counsel filed an amended motion to toll the statute of limitations. An evidentiary hearing on the motion to toll the statute of limitations was held on February 25, 2016, and taken under advisement. An order was entered on December 25, 2016, granting Petitioner the services of an expert “to the extent allowed by law” to determine whether Petitioner suffered from mental illness at the time of the offenses. On August 3, 2017, the post- conviction court entered an order denying Petitioner’s motion, in which the court concluded that Petitioner had been unable to present sufficient evidence to prove he suffered from mental illness during the applicable time period. The order effectively dismissed the petition for post-conviction relief, which was filed several years after the statute of limitations had expired. Following our review, we affirm the judgment of the post-conviction court.

carawayt_101718.pdf

THOMAS EDWARD CLARDY v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Manuel B. Russ, Nashville, Tennessee, for the appellant, Thomas Edward Clardy.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Leslie E. Price, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): EASTER

Petitioner, Thomas Edward Clardy, appeals the denial of his petition for post-conviction relief from his convictions for first degree murder, two counts of attempted first degree murder, and three counts of reckless endangerment. Petitioner argues that he received ineffective assistance counsel, that he is actually innocent, and that the trial court erred by denying him the opportunity to make an offer of proof at the post-conviction hearing. After a thorough review, we conclude that Petitioner has failed to establish that he received ineffective assistance of counsel and failed to prove that he is actually innocent. Though Petitioner should have been given the opportunity to make an offer of proof, we hold that this error by the post-conviction court was harmless. Accordingly, we affirm the judgment of the post-conviction court.

clardyt_101718.pdf

CHARLES GODSPOWER v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Daniel Lyn Graves II, Murfreesboro, Tennessee, for the appellant, Charles Godspower.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Jennings Hutson Jones, District Attorney General; and J. Paul Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): GLENN

The Petitioner, Charles Godspower, appeals the dismissal of his petition for post- conviction relief, arguing that due process considerations should toll the running of the statute of limitations because he timely handed his petition to a prison guard during a period of “lockdown” in the prison. He further argues that his trial counsel were per se ineffective in his defense and that he should have been granted post-conviction funds for a mental evaluation. Following our review, we affirm the dismissal of the petition as time-barred.

godspowerc_101718.pdf

RICKY HARRIS v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Ricky Harris, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Anthony W. Clark, District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WEDEMEYER

In 1988, a Carter County jury convicted the Petitioner, Ricky Harris, of first degree murder. On direct appeal, this court affirmed the Petitioner’s convictions. See State v. Ricky Jerome Harris, No. 85, 1990 WL 171507, at *25 (Tenn. Crim. App., at Knoxville, Nov. 8, 1990), perm. app. denied (Tenn. Feb. 4, 1991). In 2017, the Petitioner filed a petition for a writ of error coram nobis. The trial court held a hearing and denied the petition. On appeal, the Petitioner contends that he is entitled to coram nobis relief based upon newly discovered evidence as well as evidence withheld by the prosecution. After review, we affirm the trial court’s judgment.

harrisr_101718.pdf

STATE OF TENNESSEE v. AREANNA O. LLOYD

With dissenting opinion by EASTER

Court: TN Court of Criminal Appeals

Attorneys:

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Jennings H. Jones, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellant, State of Tennessee.

John G. Mitchell, III (at hearing and on appeal) and Johnathon C. Hershman (on appeal), Murfreesboro, Tennessee, for the appellee.

Judge(s): HOLLOWAY

Defendant, Areanna O. Lloyd, entered guilty pleas to two counts of robbery in concert with two or more others in violation of Tennessee Code Annotated sections 39-13-401 and 39-12-302, Class B felonies, and pursuant to the plea agreement was sentenced to concurrent terms of seven years, two months, and twelve days, in the Tennessee Department of Correction (“TDOC”) as a mitigated offender with release eligibility after service of twenty percent of the sentence. After Defendant was denied parole, she filed a “Petition for Suspended Sentence” (“the petition”). Following a hearing, the trial court determined that it did not have jurisdiction over Defendant’s sentence and denied the petition. Defendant then filed a “Motion to Reconsider” (“the motion”), arguing that she had remained incarcerated in Rutherford County and was never transferred to the physical custody of TDOC, and therefore, the trial court retained “full jurisdiction over the manner of [D]efendant’s sentence service” pursuant to Tennessee Code Annotated section 40-35-212(c) and (d)(1). Following a second hearing, the trial court granted the petition and ordered Defendant to serve the balance of her sentence on supervised probation, and the State filed the instant appeal. After a thorough review of the record and applicable law, we determine that the trial court did not abuse its discretion by suspending the balance of the sentence service and placing her on probation.

lloyda_101718.pdf
lloyda_dissent_101718.pdf

6th Circuit Court (Published Opinions)

DOMENICO TAGLIERI v. MICHELLE MONASKY

With concurring opinion by BOGGS, BATCHELDER, COOK, McKEAGUE and BUSH. With dissenting opinion by MOORE, COLE, CLAY, GIBBONS, GRIFFIN, WHITE, STRANCH and DONALD. With dissenting opinion by GIBBONS, COLE, MOORE, CLAY, GRIFFIN, WHITE and STRANCH. With dissenting opinion by STRANCH, COLE, MOORE, CLAY, GIBBONS and WHITE.

Court: 6th Circuit Court (Published Opinions)

Court Appealed From: United States District Court for the Northern District of Ohio at Cleveland

Attorneys:

REARGUED EN BANC: Aidan Taft Grano, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant. John D. Sayre, NICOLA, GUDBRANSON & COOPER, LLC, Cleveland, Ohio, for Appellee.

ON SUPPLEMENTAL BRIEF: Aidan Taft Grano, Amir C. Tayrani, Melanie L. Katsur, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., Christopher R. Reynolds, Amy M. Keating, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio, for Appellant. John D. Sayre, Amy Berman Hamilton, NICOLA, GUDBRANSON & COOPER, LLC, Cleveland, Ohio, for Appellee. Michael A.F. Johnson, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., Rachel G. Skaistis, CRAVATH, SWAINE & MOORE LLP, New York, New York, for Amici Curiae.

Judge(s): COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges

SUTTON, Circuit Judge. Domenico Taglieri and Michelle Monasky were married. When the union fell apart, Monasky took A.M.T., their two-month-old daughter, from Italy to the United States. Taglieri filed a petition under the Hague Convention to return A.M.T. to Italy. The district court granted the petition after finding that Italy was A.M.T.’s country of habitual residence. Monasky appealed.

Who wins turns on who decides. The Hague Convention places the child’s habitual residence front and center in trying to achieve its goal of discouraging spouses from abducting the children of a once-united marriage. The Convention and our cases establish that the inquiry is one of fact. Judge Oliver held a four-day hearing about the point, after which he wrote a 30- page opinion that carefully and thoughtfully explained why Italy was A.M.T.’s habitual residence. No part of that decision goes awry legally, and no part of his habitual-residence finding sinks to clear error. We affirm.

taglierid_101718.pdf

Today’s News

Legal News

Election 2018

Celebrate Pro Bono

TBA CLE

BPR Actions

Passages

TBA Member Services

Legal News

Court Solicits Written Comments on Changes to Rule 33

The court is considering amending Rule 33 of the Rules of the Tennessee Supreme Court to establish a supporting organization under the Tennessee Nonprofit Corporation Act. The court is soliciting written comments on the proposal, available here, from judges, lawyers, bar associations, members of the public and any other interested parties.The deadline for submitting written comments is Nov. 19. Written comments should be emailed to appellatecourtclerk@tncourts.govor mailed to James Hivner, Clerk, Re: Tennessee Supreme Court Rule 17 Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Ave. North, Nashville, TN 37219-1407 and should include the docket number.

ABA Issues Formal Opinion on Lawyers’ Duty in Case of Cyber Attack

The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion today that reaffirms the duty of lawyers to notify clients of a data breach and details reasonable steps to be taken to meet obligations set forth in model rules. “When a breach of protected client information is either suspected or detected, Rule 1.1 requires that the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach,” Formal Opinion 483 says. “Lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach. The decision whether to adopt a plan, the content of any plan and actions taken to train and prepare for implementation of the plan should be made before a lawyer is swept up in an actual breach.” Read more here.

Judge Dismisses Negligent Homicide Charge Against Man Who Accidently Killed Girlfriend

A judge has dismissed a negligent homicide charge against a Chattanooga man who’s girlfriend was killed when his firearm accidentally discharged in their home, The Times Free Press reports. Judge Clarence Shattuck said there wasn’t probable cause for the charge against Cody Gilliland, who said he was examining the scope on his AR-15 rifle when his dog jumped on him. As his dog continued to jump, Gilliland said he bumped into the wall and the gun went off. All sides agreed Gilliland had no intention to harm his girlfriend, but the case rested on whether he should have been aware of the risk that his handling of the gun would pose to his girlfriend.

Election 2018

Early Voting Begins for Nov. 6 General Election

Early Voting began today for the general election in Tennessee and will continue until Nov. 1. To find out about the candidates, polling locations or to check your registration status, visit the Tennessee Secretary of State’s website.

Hargett: Norris Replacement Likely to be Filled Via Special Election

State Sen. Mark Norris’ legislative seat will likely be filled by a special election, Tennessee Secretary of State Tre Hargett said this week, The Commercial Appeal reports. Norris was confirmed last week to fill a vacant federal judgeship in West Tennessee. Norris has not technically resigned from his current seat, which must be done in order for Gov. Bill Haslam to call for a special election. In the extremely unlikely case that Norris were to resign prior to Election Day, it would create a write-in contest to fill the seat on the Nov. 6 ballot.

Celebrate Pro Bono

‘Tapas for Justice’ Planned for Oct. 25 in Nashville

On Oct. 25, Justice for Our Neighbors (JFON) will host its annual “Tapas for Justice” fundraiser, supporting JFON’s efforts to help asylum-seekers, young DACA recipients, and families that have been separated from one another. The event will be held in Nashville at Bass Berry & Sims from 5:30 to 7 p.m., and will feature an art display of Amber Vongsamphanh’s photography series “America the Beautiful.” Tickets are $50 to attend and $100 to co-host.

TBA CLE

Ethics Roadshow 2018: Chattanooga

It’s back! The popular Ethics Roadshow program is coming to Chattanooga on Dec. 4. This year’s theme, Back to Basics: Sailing the Five Cs of Ethical Lawyering, focuses on the five “Cs” that make up the perfect recipe for ethical lawyering, no matter what kind of law you practice: Competence, Confidentiality, (Avoiding) Conflicts, Communication and Candor. Don’t miss your chance to fulfill your ethics requirements; offering 3 dual credits.

BPR Actions

Sevier County Lawyer Reinstated

Sevier County attorney Joe Gene Bagwell was granted reinstatement to the practice of law, according to an order filed today. Bagwell signed a partial payment agreement with the Collection Services Division of the Tennessee Department of Revenue, provided the Board of Professional Responsibility with a letter of tax clearance, paid a delinquency penalty to the board as well as his reinstatement fee. His reinstatement went into effect on Oct. 10.

Sevier County Lawyer Suspended

On Oct. 17, the Tennessee Supreme Court suspended Sevier County lawyer Elizabeth Catherine Velasquez from the practice of law for five years with three years served as an active suspension and the remainder on probation. A petition for discipline was filed against Velasquez on Jan. 29, containing one complaint of ethical misconduct. A hearing panel determined that she failed to communicate and diligently represent her client. Velasquez abandoned the client’s case. She did not respond to the petition for discipline and an order for default judgment was entered against her. Velasquez must pay restitution to a former client and contact the Tennessee Lawyer’s Assistance Program as a condition of reinstatement to the practice of law. During probation, she must engage a practice monitor, and she must pay the Board of Professional Responsibility’s costs and expenses and court costs within 90 days.

Passages

Visitation Tomorrow for Nashville Lawyer

Nashville lawyer William Billington Bruce died Oct. 12. A graduate of Father Ryan High School and Vanderbilt University, Bruce enlisted in the Air Force and served during the Vietnam War. Following an honorable discharge, he entered the University of Tennessee Law School, graduating in 1973. Bruce built a successful law practice and practiced for nearly four decades. He also was active in the community, serving on the Criminal Justice Act Panel and co-founding the Oasis Center. Visitation services will be held tomorrow from 4-8 p.m. at Woodlawn-Roesch-Patton Funeral Home and starting at 11 a.m. on Friday at Christ the King Catholic Church. A funeral mass will follow at 1 p.m. Friday.

Nashville Immigration Lawyer Dies

Elliott Ozment, one of Nashville’s leading immigration attorneys, died yesterday at age 71. Ozment, founder and managing attorney of Ozment Law and a former Democratic state lawmaker, died after complications following a stroke. A 1975 graduate of Vanderbilt University School of Law, he became known for representing underdog causes in the city, including representing a woman shackled during child birth as she faced deportation, challenging the city’s involvement in the 287(g) federal deportation program and working to defeat a referendum that would have made English the official language of Metro government. He was also active in the TBA and its Immigration Section. Funeral arrangements will be posted when available.

TBA Member Services

TBA Mentoring Program

The TBA Mentoring Program is designed to foster mutually beneficial relationships between participating attorneys and connect members with resources and tools. Mentoring opportunities include events, programs and access to practice area resources. Sign up to be a mentor or apply for mentoring opportunities.

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.

© Copyright 2018 Tennessee Bar Association
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